Language Legislation in the U.S. - Harvard University...Census Bureau/American FactFinder 2016 C16005). Spanish comes in second place, with approximately 40.5 million speakers in 2016

© Rosana Hernández

Language Legislation in the U.S. A Nationwide Analysis Cambridge, MA. Instituto Cervantes at Harvard University

Informes del Observatorio / Observatorio Reports. 047-01/2019EN ISBN: 978-0-578-45301-9 doi: 10.15427/OR047-01/2019EN

Instituto Cervantes at FAS - Harvard University © Instituto Cervantes at the Faculty of Arts and Sciences of Harvard University

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Language Legislation in the U.S. A Nationwide Analysis Rosana Hernández





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© Rosana Hernández Language Legislation in the U.S. A Nationwide Analysis Cambridge, MA. Instituto Cervantes at Harvard University Informes del Observatorio / Observatorio Reports. 047-01/2019EN ISBN: 978-0-578-45301-9 doi: 10.15427/OR047-01/2019EN © Instituto Cervantes at the Faculty of Arts and Sciences of Harvard University





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Language Legislation in the U.S. A Nationwide Analysis Rosana Hernández





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Index Presentation .............................................................................................................6Introduction.............................................................................................................81. Government Communication ............................................................................ 12

1.1. Official English ............................................................................................. 141.2. Language Access Laws ................................................................................. 26

2. Political participation ........................................................................................ 322.2. Voting Rights............................................................................................... 372.3. Voter Registration ....................................................................................... 382.4. Written Assistance: Translation of Electoral Materials ............................ 402.5. Oral Assistance ............................................................................................ 432.6. Election Employees ..................................................................................... 442.7. District Drawing.......................................................................................... 45

3. Commerce and Consumption ........................................................................... 453.1. Misleading Commercial Practices ............................................................... 473.2. Contracts ..................................................................................................... 493.3. Records and Labeling .................................................................................. 54

4. Labor .................................................................................................................. 554.1. Requirements for Employment .................................................................. 564.2. Language in the Workplace ....................................................................... 60

5. The Justice System ............................................................................................. 655.1. Before Court Proceedings ............................................................................ 665.2. Court Proceedings ....................................................................................... 705.3. After Court Proceedings ............................................................................. 75

6. Healthcare and Social Services ......................................................................... 776.1. Written Language Access............................................................................ 796.2. Oral Language Access ................................................................................. 83

Conclusions............................................................................................................ 87References .............................................................................................................. 94





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Presentation

This work presents an analysis of language legislation in the 50 states of the U.S.

and Washington D.C. through the study of their constitutions and statutes, with

special attention to the laws affecting Spanish language. Thus, the study

“Language Legislation in the U.S.,”1 in which the 19 states with the highest

percentage of Hispanic residents were considered, is now completed with the

remaining 31 states, showing a complete picture that enriches the analysis and

the conclusions presented at that time. Since covering all sources of legislation

would be an unmanageable task in a legislative system such as the U.S. one, this

work focuses on legislation produced by the legislative branch: constitutions and

statutory codes of each state.2 In order to identify legislation about languages,

the terms “language,” “English,” and “Spanish” were searched for in the legal

texts through the websites of the states’ legislative branches and the LexisNexis

legislative database. After observing in an initial approach that there is not an

abundance of laws on linguistic topics, the decision was to use sections as the

unit of analysis, since they are numerous.

1 Hernández-Nieto, Rosana (2017). “Language Legislation in the U.S.” Informes del Observatorio/Observatorio Reports. 033-09/2017EN. Legislation from the 19 states with the highest percentage of Hispanic population (vid. Figure 1) and Washington D.C. was collected before January 2017; legislation collection from the 31 states remaining ended in January 2018. Subsequent amendments are not included. 2 Those laws are subsequently developed by government agencies through regulations with the force of law. Furthermore, the executive power (State Governors and the President of the U.S.) can sign executive orders; finally, on matters of common law, judicial decisions set precedents, though in the late 20th century legislation has carried greater weight than judicial decisions (Britannica Academic s.f.).





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Sections collected can be divided into two areas. The first includes all those

regulating how a given language can or must be used; in this case, English. This

is the gender-neutral language legislation, disability-friendly language and,

above all, “plain language” legislation, the result of the claims by a movement

that advocates for presenting information to citizens in an intelligible way, so

they can use official documents as effortlessly as possible (Adler 2012: 68). This

legislation is particularly abundant in insurance law. The second category

comprises sections regulating the languages of communication between the

administration, citizens, and businesses. This work focuses on this second area,

with around 4,500 sections compiled. If the first category were added to this

figure, it would double it.

Sections are organized in six thematic parts (Government Communication;

Political Participation; Commerce and Consumption; Labor; The Justice System;

and Healthcare and Social Services) each of which is divided into subsections to

facilitate analysis. This division is inspired by that used by Kibbee (2016) in his

study of the U.S. language legislation,3 his work being much more focused on

judicial rulings. Here, his section “Education” is excluded, given that this work

3 These chapters are: “Language and Democracy,” about electoral participation; “Linguistic Inequality in the Legal System,” about the judicial system; “Language and Education,” on education; “Government, Public Services, and the English-Only Movement,” about institutional communication with citizens; “Language in the Workplace,” about language policies in the workplace.





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does not include legislation on education systems due to its volume and

complexity, and because it could fall within a separate field of study (bilingual

education). On the other hand, a section on language legislation in healthcare

and social services has been added. In order to classify the sections, their original

classification within the legal texts was followed, although a revision and

reassignment task was carried out later since, in some cases, legislation on the

same subject is classified in different chapters depending on the state.

Introduction

The U.S. is a country marked by a strong racial and ethnic diversity, the result of

the particulars and conditions of its formation as a nation and, later on, of

immigration. Nowadays the white population represents 76.9% of the total

(61.3% subtracting those self-identified also as “Hispanic”), followed by Hispanic

population (17.8%), black population (13.3%), and Asian population (5.7%) (U.S.

Census Bureau s.f.). Although the white population has always been dominant,

its percentage in the total has decreased over the last decades (from 84% in 1965

to 61.3% in 2017); according to demographic projections, whites will cease to hold

a majority sometime between 2045 and 2055 (Stepler and Brown 2016).





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Most of these changes in the U.S. population can be explained by the Latino4

demography evolution. Coupled with its historic presence in territories of what

is now the U.S., mainly in the Southwestern states (Fernández-Armesto 2014),

the current magnitude of Hispanic population responds to a large extent to the

increase of Latin-American immigration since the adoption of the Immigration

and Nationality Act of 1965. Hispanic population is currently the largest racial

and ethnic minority in the U.S. with 58.9 million, and it could reach 111 million

by 2060, representing 27.5% of the total population (Krogstad 2014), although

these projections may be influenced by the behavior of migratory flows,5 which

since the beginning of the 21st century have begun to decline (Camarota and

Zeigler 2017; López and Bialik 2017).

4 “Hispano” and “Latino” are terms used interchangeably in this text. 5 Ortman and Guarneri (2009) present different demographic scenarios for 2050 depending on migration circumstances: Hispanic population percentage by 2050 can vary up to 3.5% between a “constant net international net migration” scenario (27.8%), and a “high net international migration” scenario (31.3%).





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Figure 1. Hispanics as a percentage of the total state population. Source: U.S. Census Bureau/American FactFinder 2016: PEPASR6H.

The United States is a linguistically diverse country as well, in which around 350

different languages can be heard (U.S. Census Bureau 2015). English is the

predominant one: 237.8 million have it as their only language and another 39.9

million speaking another language declare to speak English “very well” (U.S.

Census Bureau/American FactFinder 2016 C16005). Spanish comes in second

place, with approximately 40.5 million speakers in 2016 (ibid.), followed by the

Chinese and the Tagalog languages,6 with 3.1 and 1.68 million speakers

respectively (U.S. Census Bureau/American FactFinder 2016 B16001).

6 Chinese includes Mandarin and Cantonese; Tagalog includes Filipino.





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What policies does the U.S. develop to manage this linguistic diversity?

Language policy can be defined as “a policy mechanism that impacts the

structure, function, use, or acquisition of language,” and it includes official

regulations; non-official, implicit mechanisms; not only the products of the

policies but the processes driven by multiple actors involved in language policy;

and political texts and speeches influenced by ideologies and speeches

characteristic of this context (Johnson 2013: 9). Although this field of study,

initially designated as “language planning,” has evolved to include ideologies,

linguistic practices, and actions of other actors (García 2015), language

legislation continues to be an element present in any definition, understood as

the instrument through which “the political authority intervenes openly, for

example by modifying the direction of social forces in favor of one language or

another,” and “state the linguistic rights and obligations regarding the use of

languages in diverse areas of social life at the heart of the political unit”

(Berthoud and Lüdi 2011: 479).

U.S. language policy faces two key challenges. The first one, the management of

tens of mother tongues coexisting in the country and their status: Are languages

other than English “U.S. languages”? Should they be preserved and recognized?

The second one, the situation of the population that does not understand the

majority language properly; not all people with mother tongues other than





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English experience problems communicating in this language, but in 2015, 25.9

million U.S. residents had limited English proficiency7 (LEP) (Batalova and Zong

2016), of whom 16.4 million (64%) were Spanish speakers.

Figure 2. LEP population as a percentage of the total state population. Source: Batalova and Zong (2016).

1. Government Communication

The success of the State “as a Project of collective political deliberation and

collective pursuit of socioeconomic well-being (…) rests on the possibility of

7 People with limited English proficiency are those who answer that they speak English “less than very well” when asked by the Census or the American Community Survey.





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communicative exchanges” (Rubio-Martín 2003: 52); for these exchanges to be

successful it is necessary to evaluate in which languages they will be performed.

In this respect, the literature on public policies points out that, in order for a

government authority to act on a reality through public policy, it is necessary

first that they perceive that reality as a problem, and as one that is relevant in

the government agenda (Subirats, Knoepfel, Larrue, and Varonne 2008: 33).

Then, the government may decide to act or not to act; the decision not to act,

defined as “anything a government chooses to do or not to do” (Dye, as cited in

Meny and Thoening 1992: 92), is also public policy, although that laissez faire is

more difficult to identify and evaluate. Language policy is a different case, since

the state cannot be neutral: in the mere fact of establishing a communication

with the citizen, a language is being chosen to do so (Schmidt 2000: 46). These

elections “can have dramatic effects on a person’s Access to public services and

social rights” (Kymlicka and Patten 2003: 18). Citizens proficient in the chosen

language will benefit from the decision, while those with limited proficiency or

no proficiency at all will face difficulties in understanding, exercising and

fulfilling their rights and obligations.

For Crawford (1992: 87), this is one of the perspectives from which one can

approach the debate on English as the official language of the U.S.: as a conflict

over the right to equal access to the government and to education. The second





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point of view considers the debate as a discussion on national identity, on the

meaning of “being American,” and on “how much diversity a nation can

tolerate;” therefore, this perspective is linked to the conception of language as

an instrument to articulate national unity (Schmidt 2000: 44). Which of these

two approaches does legislation about government communication take?

Laws that declare English as the official language and, on the other hand, those

organizing language access measures in the public administration are analyzed

below. Sections that are limited to specific areas, such as justice or healthcare,

will be examined in the corresponding thematic section.

1.1. Official English

In the U.S., both at the federal and the state level, there is a language designated

or used as the general communication language in public administration

(English), regardless of the existence of a law establishing its officiality. Three

exceptions may be considered: New Mexico, Hawaii, and Alaska, although, as

will be seen further on, English prevails over Spanish, Hawaiian, and Alaska

Native Languages, respectively. A similar situation can be observed in Louisiana

with the French language. From this general situation, the administration in

some cases considers measures to accommodate individuals with a mother





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tongue other than English and limited English proficiency (Kymlicka and Patten

2003: 19).

The United States has never declared an official language, though Congress has

made several attempts to do so. The first proposal, Proposition 14136, was

introduced in 1923, within the framework of the nativist movement that followed

World War I, which led to the approval of migratory quotas (Tatalovich 1995).

The issue disappeared from the legislative agenda until the 80s, when several

propositions were introduced; in order to ease approval, the legislative strategy

changed from hopes of constitutional amendment to the simpler strategy of

trying to pass a bill (Dale and Gurevitz 1977: 1).

Table 1. Initiatives to Declare English the Official Language of the United States. Source: Aka and Deason (2009).

Year Initiative Sponsor Party

1981 English Language Amendment (ELA)

Senator Samuel I. Hayakawa (California) Republican

1995 Language of Government Act Senator Richard C. Shelby (Alabama) Republican

1997 Bill Emerson English Language Empowerment Act

Representative Randall Cunningham (California) Republican

2007 S. I. Hayakaya Official English Language Act Senator James Inhofe (Oklahoma) Republican

2007 English Unity Act Representative Steve King (Iowa)8 Republican

2007 National Language Act Representative Peter King (New York) Republican

8 Steven King has reintroduced the English Unity Act into every session of the House of Representatives since 2007, most recently on February 9, 2017. It has never become law. 2017 Proposition has not yet been voted on.





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This renewed interest in making English the U.S. official language coincided

with the emergence of several lobby groups, the most important of which is U.S.

English, which advocates that all government activities be conducted in English

under the argument that this measure will unite Americans and push

immigrants to learn English faster (Daigon 2000); this claim is usually labeled as

“English-Only,” even though U.S. English rejects this appellation and argues that

they do not support the prohibition of any language in the U.S.9 ProEnglish,

founded in 1994 as English Language Advocates,10 has similar objectives, as well

as the organizations that emerged on the local level (Tatalovich 1995).

These groups’ claims have not yielded results on the federal level, though they

have had success on the state level. Since the early eighties, 27 states have

declared English their official language, joining Nebraska and Illinois (1923), and

Hawaii (1978). There is no general agreement on the number of states with

English-Official legislation. U.S. English and ProEnglish count 32, including

Massachusetts (Constitution, Art. XX, 1975), and Louisiana (Louisiana Enabling

Act, 2 U.S. Statutes 641 §3, 1981). Kibbee (2016: 149) refers to 33 states that “confer

some type of official status to English through statutory or constitutional

9 See https://bit.ly/2Mk1ZfX. In this paper “English-Only” will be used to refer to policies supporting that government or businesses use only English as their language of communication. The term “English Official” will be used to refer to laws declaring English as the official language, since, as it will become clear, it cannot be stated in all cases that they entail exclusive use of English in public administration. 10 More information at: https://proenglish.org/our-mission





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means.” On the contrary, neither Crawford (1992, and www.languagepolicy.net)

nor Tatatalovich (1995) include Massachusetts and Louisiana in their analysis.

This work does not include them either, since in Massachusetts what we find is

a judicial interpretation of a law,11 and in Louisiana, the law that enabled the

state to join the Union,12 but which is not included either in the state

constitution or the statutes.

Table 2 presents the states with Official English declarations, when13 and

through what mechanism they were approved, the percentage of Hispanic

population, and the percentage of LEP population in each state. U.S. English “has

supported Official English campaigns in more than forty states,” and has

founded the initiatives in Arizona, Colorado, and Florida (Crawford 1992: 171).

11 https://proenglish.org/massachusetts/ 12 https://proenglish.org/louisiana/ 13 Even though the Illinois declaration is often dated in 1969, the original declaration was passed in 1923; in 1969 the term “American” was replaced by “English.” In the case of Arizona, the state is located in the table with the year of its first declaration, 1988, although the courts repealed it and the law in force was passed in 2006. In this way, it is possible to better visualize the impact of the English-Only claims in the 1980s.





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Table 2. States with declarations of English as their official language.

State Year

Percentage of Hispanic

population (2016)

Percentage of LEP

population (2015)

Adoption mechanism

Nebraska 1920 10.1% 4.8% Constitutional convention.

Illinois 1923 16.7% 9.0% Legislative branch: Statutes (1923, amended in 1969).

Hawaii 1978 10.0% 12.4% Referendum: Constitutional

amendment (1978). Legislative branch: Statutes.

Virginia 1981 8.8% 5.9% Legislative branch: Statutes (1981, revised in 1996).

Indiana 1984 6.5% 3.3% Legislative branch: Statutes. Tennessee 1984 4.9% 2.9% Legislative branch: Statutes. Kentucky 1984 3.3% 2.1% Legislative branch: Statutes.

California 1986 38.6% 18.6% Referendum: Constitutional amendment.

North Carolina 1987 9.0% 4.7% Legislative branch: Statutes.

Arkansas 1987 6.9% 3.3% Legislative branch: Statutes. South Carolina 1987 5.3% 2.7% Legislative branch: Statutes.

North Dakota 1987 2.8% 1.9% Legislative branch: Statutes. Mississippi 1987 2.7% 1.7% Legislative branch: Statutes.

Arizona 1988 30.5% 8.9% Referendum: Constitutional amendment.

Florida 1988 24.1% 11.8% Referendum: Constitutional amendment.

Colorado 1988 21.2% 6.3% Referendum: Constitutional amendment.

Alabama 1990 3.9% 2.2% Referendum: Constitutional amendment.

Montana 1995 3.4% 0.9% Legislative branch: Statutes. South Dakota 1995 3.4% 2.4% Legislative branch: Statutes. New Hampshire 1995 3.2% 2.2% Legislative branch: Statutes.

Wyoming 1996 9.8% 2.5% Legislative branch: Statutes. Georgia 1996 9.1% 5.8% Legislative branch: Statutes. Alaska 1998 6.7% 5.1% Legislative branch: Statutes.

Missouri 1998 3.8% 2.1% Legislative branch: Statutes (1998).

Referendum: Constitutional amendment (2008).

Utah 2000 13.5% 4.8% Referendum: Statutes. Iowa 2002 5.5% 3.3% Legislative branch: Statutes. Idaho 2007 12.1% 3.7% Legislative branch: Statutes. Kansas 2007 11.3% 4.6% Legislative branch: Statutes.

Oklahoma 2010 9.8% 4.1% Referendum: Constitutional amendment.

West Virginia 2016 1.5% 0.7% Legislative branch: Statutes.





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As Table 2 shows, two moments can be clearly distinguished. The first one is the

1920s, with the declarations of Nebraska and Illinois, framed in the

aforementioned nativist movement. The second moment began in the 1980s,

parallel to the introduction of the English-Only policies in the legislative agenda

with U.S. English and, although this moment loses intensity gradually, it

continues until today. With the exception of Virginia, which approved its law

before the foundation of U.S. English (Tatalovich 1995: 1995), 12 states passed the

declaration in the 1980s, eight in the 1990s, and five in the first decade of the 21st

century. West Virginia approved it in 2016 and in Michigan the proposition

passed the House of Representatives in 2018, pending Senate approval and

Governor ratification (Ikonomova 2018). Nine out of the 30 states with English-

Official declarations voted the proposition on a referendum with the outcomes

shown in Table 3.

Table 3. Results of referenda to declare English the official language. Source: ballotpedia.org.

State Year % Yes % No

Arizona 1988 50.50% 49.50% 2006 74% 26%

California 1986 73.2% 26.8% Colorado 1988 61.15% 38.85% Florida 1988 83.87% 16.13% Utah 2000 67.18% 32.82% Alabama14 1990 89% 11% Hawaii 1978 69.72% 30.28% Missouri 2008 86.31% 13.69% Oklahoma 2010 75.54% 24.46%

14 Tatanovich (1995: 247).





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Votes in favor exceeded 60% in all cases, with the exception of the first

referendum in Arizona,15 where support for the proposition accused the effect of

the leaking of the so-called “Tanton memorandum” (Tatalovich 1995), in which

the U.S. English co-founder John Tanton referred to the cultural threats that the

“Latin onslaught” would pose both to California and to the U.S. (Crawford 1992);

this text confirmed the fears of those who associated the English-Official

proposition and U.S. English with xenophobic positions. Linda Chávez, the

organization’s president, resigned after calling Tanton’s comments “repugnant

and anti-Hispanic” (Crawford 1992: 172). Another U.S. English founder,

Republican Senator for California S.I. Hayakawa, asserted that “the only people

who have any quarrel with the English language are the Hispanics—at least the

Hispanic politicians and ‘bilingual’ teachers and lobbying organizations” (in

Crawford 1992: 96-99). For Leibowicz (in Crawford 1992: 109) there is no doubt

about the anti-Hispanic component of the lobby: “Where the Americanizers

were afraid of Slavic or Mediterranean hordes, supporters of the E.L.A. [English

Language Amendment] are afraid of Spanish and the people who speak it.”

While the majority of the English-Official declarations correspond to states with

low percentage of Hispanic population (only nine out of the 30 declarations

correspond to the 20 states with the highest percentage of Hispanic residents),

15 As stated above, the first law was repealed by the courts; a second referendum was held to decide about a different text.





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the “anecdotal information” gathered in Tatalovich´s (1995) case studies of the

18 English-Official laws approved before 1990 allows this author to assert the

existence of a clear “anti-Hispanic reaction.”

Significantly enough, one of the sponsors of the proposition in Arkansas

recognized that bilingualism was “not a current problem but a potential

problem” (Tatalovich 1995: 207); in Virginia, the rationale for the proposal was

“a desire to defend the common English language as an essential element of

social cohesion and harmony” (ibid.: 223); finally in North Carolina, Democrat

Representative Richard Wright asserted during the debates that “We certainly

have (an) obligation… not to become the melting pot to the extent that we all

lose our identity (ibid.: 214). These examples serve to illustrate that, rather than

responding to a real problem of communication between the government and

the citizens, these declarations are often inclined to reaffirm English as an

element of U.S. identity and as a social harmonization tool. Alabama, Alaska,

California, Iowa, Missouri, North Carolina, and Oklahoma declarations refer to

English as the common or even unifying language of the state and the country;16

16 Iowa’s declaration is the most extensive in this respect: “a) The state of Iowa is comprised of individuals from different backgrounds. The state of Iowa encourages the assimilation of Iowans into Iowa’s rich culture. b) Throughout the history of Iowa and of the United States, the common thread biding individuals of differing backgrounds together has been the English language¨ (Iowa Code, Title 1, Subtitle 1, Chapter 1, §1-18).





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on the contrary, only three laws (Idaho, Kansas, and Utah) mention the need to

start, continue and expand English as a second language program.

Faced with the fears that other languages may threaten English and U.S. identity,

especially Spanish, the so called “iron law” of English language learning indicates

that ethnic minorities lose their mother tongue in the second or third

generation, with a slightly higher maintenance among Hispanics because of the

continuous arrival of Spanish-speakers into urban barrios (Fishman, in Crawford

1992: 168). On the other hand, Kymlicka and Patten (2003: 8) point out that

migrants’ ongoing connections with their countries of origin allowed by

transportation and new technologies (transnationalism) and multiculturalism

mean that loss of the native language is not as inevitable as in the past, a fact

that fuels English-Only propositions.

While all these laws have a negative connotation toward the use of languages

other than English and thus can be harmful in their different degrees of

restriction (Aka and Deason 2009: 68), the analysis of the texts reveals notable

content differences.





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Table 4. Characteristics of Official English declarations by state (in approval order).

State Documents

and registrations

Language used by civil

servants

Return of funds

Possibility of filing

complaint against state

for noncompliance

Regulation of

exceptions

Nebraska √ - - - - Illinois - - - - - Hawaii - - - - - Virginia - - - - - Indiana - - - - - Kentucky - - - - - Tennessee √ - - - - California - - - √ - Arkansas - - - - - Mississippi - - - - - North Carolina - - - - -

North Dakota - - - - - South Carolina - - - - √

Arizona √ √ - √ √ Florida - - - - - Colorado - - - - - Alabama - - - √ - Montana √ √ - - - New Hampshire √ √ - - √17

South Dakota √ √ - - √ Georgia √ √ - - √ Wyoming - - - - √ Alaska √ √ - √ √ Missouri - √ - - - Utah √ - √ - √ Iowa √ - - - √ Idaho √ √ √ - √ Kansas √ √ - - √ Oklahoma √ √ - - - West Virginia √ √ - - √

17 New Hampshire considers the use of French language in the procedures between the state and Quebec.





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Table 4 summarizes the main characteristics of the legal texts,18 showing how

some of the English-Official declarations are purely symbolic (Kymlicka and

Patten 2003: 25; Schmidt 2000: 29). Illinois, North Dakota, Indiana, Mississippi,

and Kentucky merely indicate that English is the official language of the state.

Colorado and Florida add that the legislature has the power to further develop

the statute. In the latter case, Cuban Republican legislators and Democratic

legislative leaders came to an agreement to block any development or

enforcement of the law (Tatalovich 1995: 102). The declarations made by Alaska,

Arizona, Kansas, Idaho, and Utah are much more restrictive: the first two, along

with California and Alabama, allow a citizen to take the state to court for not

compliance. Furthermore, Idaho and Utah require state agencies to return funds

earmarked for language access services.

In up to 14 cases, some of the most restrictive ones with the use of languages

other than English among them, it is indicated that other languages may be used

to communicate with citizens when required by the U.S. Constitution, the state

constitution, or federal laws and regulations.19 In this way, the checks and

balances mechanism of the U.S. political and legal system—whereby no actor,

18 This analysis is strictly limited to the text of these laws; some states that have not declared an official language nevertheless have provisions regarding the requirement that all documents submitted to public bodies or registered be in English. 19 The Supremacy Clause (Article VI of the U.S. Constitution) provides that federal law prevails over state law in the event of conflict. For a detailed description of the U.S. legal and institutional system, see Lowi et al. (2011).





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legislative, executive, or judicial, and no level of government, local, state, or

federal, concentrates all power, but establishes a network of connections and

mutual influences—slows down the most restrictive English-Official laws.

Moreover, in two Official English declarations (Georgia and Kansas) there is an

explicit reference to the possibility of providing translated documents and even

interpreters in the latter case.

In this regard, the language access laws, which are analyzed in the following

section, do not represent the answer to English-Official propositions: this came

with the English Plus initiative, whose impact was much more limited. The

defense of U.S. diversity and the demand for an increase of education in English

and in other languages, as well as of language assistance, crystallize in the

approval of four resolutions:20 New México (1989), Oregon (1989), Washington

(Code, 1.20.100, 1989), and Rhode Island (General Law 42-5.1-1, 1992), although

only the last two texts were incorporated into the states’ legislation and, in the

case of Washington, it is made explicit that the resolution neither creates rights

nor establishes specific action programs.

In addition to English, only two states recognize other languages as official:

Hawaii (1978), Hawaiian, and Alaska (1998), a total of 20 native languages.

20 See: http://www.languagepolicy.net/archives/langleg.htm





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However, in Hawaii, the English version of the laws prevails and the use of

Hawaiian in public activities is not required (Statutes, Ch. 1. §1-13), while in

Alaska recognition of those 20 languages is merely symbolic, since there is no

obligation to print documents or to conduct governmental activities in those

languages (Statutes 44.12.310). Regarding New Mexico, some authors describe

Spanish as a quasi-official language (Romero 2011), but the fact is that laws are

published only in English since 1951 (Fedynskyj 1971). On the other hand,

Louisiana maintains in its statutes a section that recognizes any contract written

in French as legal and binding as any other in English.21

1.2. Language Access Laws

The second answer to multilingualism in the U.S. legislation is the language

access laws. This approach emerged in the 1970s (Schmidt 2000: 19) and argues

that the government, through language assistance services, should facilitate the

overcoming of language barriers that minority language speakers face in

exercising their civil and political rights. This position does not necessarily

conflict with English-Official laws (even though U.S. English opposes language

access measures), as observed in the legislation: language access focuses more

21 “Any act or contract made or executed in the French language is as legal and binding upon the parties as if it had been made or executed in the English language” (Louisiana Revised Statutes, Title 1, 1:51).





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on the provision of assistance in very-well defined cases (and always considering

the financial cost of it),22 than in the recognition of languages other than English

in the daily functioning of the administration.

Unlike the legislative situation for English-Official, there is a federal law for

language access: Executive Order (EO) No. 13166 of 2000 (Improving Access to

Services for Persons with Limited English Proficiency), developed from Title VI

of the Civil Rights Act of 1964, which prohibits discrimination on the basis of

national origin. This provision and its subsequent development require agencies

receiving federal funds (healthcare, social services, justice, or environmental

agencies among them) to provide language access services (Cabrera 2017: 47-50).

The Federal Government makes these funds contingent upon compliance with

established standards,23 so that even those states with the most restrictive

English-Official laws are forced to comply with federal regulations.

Language access legislation is far less present than English-Official legislation at

the state level. Only six state passed these laws: California, Washington D.C.,

Minnesota, Maryland, Hawaii, and Louisiana. Their chronological distribution is

22 “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.” Department of Justice 2002. Federal Register Vol. 67, n.° 117. Tuesday, June 17, 2002. 23 Friedman and Hayden (2017: 136-137) illustrate how, through this kind of mechanism —used, for instance, in education—, the federal government has gradually taken de facto control over domains for which other levels of government are theoretically responsible.





28

also different from that observed in English-Official declarations: while the latter

are concentrated mostly in two periods, language access laws are scattered over

the last five decades, with three texts prior to the EO 13166 (California,

Washington D.C., and Minnesota), and three subsequent (Maryland, Hawaii,

and Louisiana). Apart from these cases, only Texas’s Statutes include a general

provision requiring agencies to translate into Spanish the information they

provide, although it only applies to online content (Government Code,

§2054.116). The rest of the states have sections on very particular aspects (for

example, referring to translations of certain notices and signs, but not with

general scope), or on specific fields, such as justice or commerce which will be

addressed in the corresponding section.

Table 5. Language accessibility laws (in approval order).

State Year Law Language

California 1973

(2012-2015)

Government Code. Title 1. Division 7. Chapter 17.5 (§7920-7299.8).

Dymally-Alatorre Bilingual Services Act. Thresholds24

D.C. 1977 (2004)

Code. Title 2. Chapter 19. (§2-1931-2-1937) Bilingual Services Translation Act (Language Access Act). Thresholds

Minnesota 1985 Statutes, §15.441 Thresholds

Maryland 2002 Code. Title 10. Subtitle 11. (§10-1101 a 10-1105). Equal Access to

Public Services for Individuals with Limited English Proficiency.

Thresholds

Hawaii 2006 (2012)

Statutes. Title 19. 321C. Office of Language Access (§321C-1-321C-7) Thresholds

Louisiana 2011 Statutes. Title 25. Chapter 14. (§671-674). Louisiana French Language Services Program. French

24 Threshold refers to the provision of language assistance when a given percentage or absolute number of non-English speakers with the same mother tongue living in a given place is reached.





29

These laws are strongly influenced by the EO of 2000, with the exception of

Minnesota, which didn’t experience any change since its approval in 1985 and is

the most vague of all: it consists of a single section, it “encourages” translating

materials, and it does not specify to which agencies it applies, but instead it

states that application will be addressed with each of them.

California and Washington D.C. were the pioneer states in passing this type of

legislation. As early as the 1970s they reflected the difficulties experienced by

non-English speakers when accessing public programs and services and the need

for effective communication between government, citizens and residents.

Initially, California referred to the provision of language access services only

vaguely: when there is “a substantial number of non-English speakers,” while the

Washington D.C. Bilingual Services Translation Act of 1977 applied only to

Spanish. After the approval of the EO 13166, both laws incorporated, with slight

nuances, the criteria established by this federal regulation to decide when

language assistance is provided to Limited English Proficiency population; these

same principles govern the laws passed after the EO (Maryland, and Hawaii).

Regarding oral assistance (interpreters, telephone interpreting services, or

bilingual employees) the criteria include: the number or proportion of LEP

people served or encountered by the agency; the frequency of contacts with





30

those people; the nature and the importance of the program, activity, or services

provided; and the resources available by the recipient of federal funds (agencies

and another institutions), as well as the financial cost.25 In the case of written

services, that is, translations, California and Hawaii apply one of the Department

of Justice’s standards for determining whether or not an agency meets the EO

13166 requirements: translations of vital documents have to be provided when

each LEP group represents 5% or 1.000, the lowest figure, of the eligible or

encountered population (ibid.).26 Washington D.C. lowers that threshold to 3%

or 500 people, and Maryland to 3%.

Subsequent assessments of some of these laws demonstrate that the results have

not always been satisfactory. Both the California State Auditor (California State

Auditor 2010), and the Hawaii Office of Language Access (Office of Language

Access 2014) note that agencies often do not meet the requirements or

implement the recommendations, while Washington D.C. demands

improvements in the data collection systems and increased hiring of bilingual

staff to complement telephone interpreting services (Berstein, Gelatt, Hanson,

and Monson 2014).

25 See footnote 22. 26 See footnote 22.





31

Louisiana’s law (Louisiana French Language Services Program, 2011, T. 25. Ch. 14

§671-672) merits special analysis. Unlike the aforementioned laws, this one does

not operate with thresholds, but only provides services in one language, French.

Moreover, the orientation from which it was conceived is remarkably different

to that of the EO 13166 and the other five state laws: in this case, the main

rationale for providing public services in French is not the need to overcome a

language barrier, but the desire to preserve the French cultural heritage of the

state, together with an economic aim: to stimulate tourism and investments

from francophone countries. This law is not the only claim for the French

cultural heritage of Louisiana: the Council for the Development of French in

Louisiana (CODOFIL) was established in 1968 “to preserve, promote, and

develop Louisiana’s French and Creole culture, heritage and language”

(Louisiana Statutes. Ch. 13. §651.A.1). Murphy (2008: 369-370) links CODOFIL

foundation to the ethnic revivalism movement experienced in the U.S. and in

other parts of the world in the 1960s, with a wave of post-colonial literary and

historical studies looking to situate the south of Louisiana in a Franco-Atlantic

context, and with the support of the state governor and a group of legislators

who identified economic possibilities in claiming the French heritage of the

state.





32

This approach is unique in the legislation reviewed, which generally addresses

languages other than English from a language access position; furthermore, the

numerous councils of Latino issues in different states are mainly focused on

reducing the social, economic, and educational gaps between Hispanics and the

rest of the groups, and they do not include among their objectives the

preservation, or promotion of the Spanish language or the Hispanic cultures.

2. Political participation

The effective and equal exercise of political participation constitutes another

essential element to ensure the success of a state “as a Project of collective

political deliberation” (Rubio-Marín 2003: 52). While public participation is not

limited to elections, it also includes more deliberative processes in which

citizens have the right to participate (Kymlicka and Patten 2003), legal

provisions on language access and participation outside elections are anecdotal.

For example, in Connecticut, plans for public participation in environmental

projects must provide information about their meetings in all languages spoken

by at least 20% of the affected population to guarantee their involvement in

these regulatory processes (T. 22a. Ch.439, P.II §22a-20a). In California, they seek

to ensure the participation of people affected by the slow release of toxic

substances (Div. 20, Ch. 6.8, Art. 5, 25358.7), while in Rhode Island interpreters





33

are provided at public hearings for the renewal of water treatment plants (42-

17.4-12).

Most legislation on the use of languages other than English in the election

process is determined by Section 203 of the Voting Rights Act (VRA) (1965),

added in 1975. This federal law, which already prohibited discrimination on the

basis of race or color, included the prohibition of establishing requirements that

prevent linguistic minorities from voting; it also defined the situations in which

jurisdictions must provide written assistance, with translated voting materials

(such as registration forms, notices, instructions, ballots…), or oral assistance in

the appropriate languages.

The following criteria are used when determining the political subdivision

subject section 203: 1) the percentage of a given minority-language speakers in

the subdivision; 2) the voting age population of these minorities and, within the

subdivision, the LEP population must exceed 10,000 or 5% of the population; and

3) the percent of the population with limited English proficiency and less than a

fifth-grade education must be greater than the national average. In areas with

Native American or Alaska native population, more than 5% of citizens of legal

voting age must belong to the same native group and have limited English

proficiency. Table 6 shows the jurisdictions under section 203 as of December of





34

2016.27 In addition, California, Florida, and Texas are required to provide Spanish

translations of all materials issued in the state.

Table 6. Number of jurisdictions under section 203 of the VRA by minority.28

State Hispanic Asian

AIAN (American Native

and Alaska Native)

Alaska 1 2 19 Arizona 4 6 California 26 21 2 Colorado 4 2 Connecticut 9 1 Florida 13

Georgia 1

Hawaii 2

Idaho 1

Illinois 3 1

Iowa 1 1

Kansas 5

Maryland 1

Massachusetts 10 3

Michigan 2

Mississippi 10

Nebraska 3

Nevada 1 1

New Jersey 8 2

New Mexico 12 12 New York 7 5

Oklahoma 1

Pennsylvania 3

Rhode Island 3

Texas 88 3 2 Utah 1 Virginia 1 1

Washington 3 2

Wisconsin 3

27 See https://www.census.gov/rdo/data/voting_rights_determination_file.html 28 One and the same jurisdiction can fall under article 203 for different minorities.





35

As can be observed, not all individuals have the right to access election materials

or oral assistance in their own language; on the contrary, the law works again

with the notion of language threshold. Furthermore, section 203 does not

protect all non-English speakers; it only applies to Spanish, Asian languages,

Native American languages, and Alaska native languages.

Based on this common framework, which is mandatory for the whole country,

this work will now analyze state legislation, starting with the electoral campaign

and going through the entire electoral process, finishing with the mechanisms

used to transform votes into political representatives. There are 11 states whose

statutes do not include provisions on languages in the electoral process. Of

these, only Alaska and Michigan have districts under the VRA; another eight

states have no affected political subdivisions (Montana, New Hampshire, North

Carolina, Oklahoma, South Carolina, Tennessee, Vermont, and Wyoming), and

Idaho only has one since 2016.

Despite more than 40 years of history, bilingual materials remain controversial.

Their advocates consider that they improve voter turnout and increase the

political influence of minority-language speakers (Tucker 2009). On the

contrary, their detractors, U.S. English among them, argue that they diminish

immigrants’ efforts to learn English, do not increase voter turnout, could be





36

replaced by private assistance, and are a financial burden on citizens (Trasviña,

in Crawford 1992: 257-263; Tucker 2009). Senator Hayakawa even asserted that

bilingual ballots were an expression of “profound racism,” as certain groups, such

as Mexicans, Puerto Ricans, Japanese, and Chinese, were “assumed not to be

smart enough to learn English” (Hayakawa 1985, in Crawford 1992: 96). Another

argument from opponents is that bilingual materials encourage non-citizens to

vote illegally (ProEnglish;29 Chávez 2011).

2.1. Electoral Campaigns

Provisions on electoral campaigns are scarce and refer to very specific matters,

such as the requirement to use party and candidate names in English in New

York, the option of the candidate’s English name being accompanied by his or

her Hawaiian nickname, and the possibility for candidates to send statements to

voters in other languages—at their own expense—in Illinois. California and

Colorado run public information campaigns on voting and voter registration

systems in the languages contemplated by the VRA, and Pennsylvania does the

same with voters’ registration where a language minority exceeds 5% of the

population. Furthermore, only California has created by statutory law public

agencies to manage language access in the electoral process: a working group

with proven experience in language access in the VRA languages, and an

29 See https://proenglish.org/multilingual-ballots/





37

advisory committee whose recommendations are received by the Secretary of

State.

Legislation is also limited regarding the publication of notices with information

on the electoral process, voting registration locations, voting procedures, and

the announcement of candidates. In New Mexico, Spanish is used for these

notices, and special measures are considered for counties under the VRA with

unwritten Native American languages. In New Jersey this information is also

published in Spanish, but only in counties where 10% of registered voters speak

Spanish as their native language. In Texas and Nebraska, voting requirements

are disclosed in the same languages for which voting materials are available,

while in New York they are published in those languages determined by the

board of elections. Ohio, the other state with legislation regarding this issue,

only provides publications in English.

2.2. Voting Rights

New Mexico and Illinois reiterate in their constitutions the right to vote without

discrimination on the basis of race, color or language recognized by the VRA.

On the other hand, although currently prohibited by the VRA and not used,

(Graham 2011: 74; Holland 2017) South Carolina and Delaware laws provide for

the possibility of establishing English literacy tests in order to vote (South





38

Carolina Constitution Art. II. §6; Delaware Constitution Art. V. §2). North

Carolina contemplates them for voters’ registration (Orth and Newby 2013).

In the case of passive suffrage, that is, the right to be elected to public office,

New Mexico once again prohibits discrimination “on account of religion, race,

language or color, or inability to speak, read or write the English or Spanish

languages” (New Mexico Constitution Art. VII, § 3). On the contrary, Arizona’s

constitution provides that “the ability to read, write, speak, and understand the

English language sufficiently well to conduct the duties of the office without the

aid of an interpreter, shall be a necessary qualification for all state officers and

members of the state legislature” (Arizona Constitution Art. XX, §8). This

requirement was confirmed in 2012 by the Yuma County Superior Court and by

the Arizona Supreme Court, which deemed valid the disqualification of

Alejandrina Cabrera as a candidate for the San Luis City Hall for not having

sufficient English proficiency (Escamilla vs. Cuello).30

2.3. Voter Registration

The U.S. electoral system requires voting citizens to register before the election,

and the VRA considers voter registration to be part of the procedures included

30 Full sentence available at http://bit.ly/2uGgO6I





39

in mandatory written and oral language assistance under section 2003. However,

not all states follow that premise: for example, Arkansas, Massachusetts,

Pennsylvania, and Washington have legislation on language access regarding

registration, but not considering the voting procedures. On the contrary,

Arizona, Connecticut, Florida, Indiana, Kansas, Minnesota, Nebraska, Ohio, and

Utah refer to voting materials, but do not include registration. Only Alabama,

Washington D.C., New Jersey, Rhode Island, and Texas work with the same

standards for registration and for the rest of the electoral procedures.

Furthermore, Colorado and Louisiana state that they will work to minimize

problems experienced by LEP population during the electoral process and

provide them with language assistance, but they do not specify these statements.

Table 7 shows languages in which forms and assistance for voter registration are

provided.

Table 7. Language access provisions for voter registration.

State Language Arkansas, Illinois, Massachusetts English and Spanish.

New York Russian (cities with a population over 1 million). South Dakota Sioux dialects. New Mexico English and Spanish. Unwritten minority languages.

Alabama Voting age population from the same language minority representing 5% or more of the population.

Washington D.C. Eligible voting population with the same language

representing 5% of the eligible voting population in the district.

New Jersey 10% or more of registered voters in a given district speak Spanish as their native language.





40

State Language

Pennsylvania Only one language minority; language minority representing 5% of total population.

Texas Hispanic-origin or descent population representing 5% or

more of total population of the county to which the district belongs to.

Rhode Island VRA Washington VRA California VRA

2.4. Written Assistance: Translation of Electoral Materials

As indicated above, Section 203 is the core of a substantial part of the states’

legislations on the electoral process. When translating election materials,

Connecticut (voters’ rights), Florida and Nebraska (ballots), Illinois (voting

guide), Louisiana (materials generally), and Rhode Island (notices, information,

and ballots) use Section 203 as their legal reference. California and Texas also

refer to the VRA, although they include their own criteria regarding language

assistance. Furthermore, it is noted that provisions are often very specific about

the document to be translated, but completely vague in relation to the

circumstances in which the voter is entitled to request the translation and in

which languages.

Indiana, Minnesota, New York, and Kansas consider the possibility of providing

voting instructions in languages other than English (also other electoral

materials in Kansas), but without criteria for doing so. Arizona, Nebraska, Ohio,





41

and Utah provide them only in English; Maine, in French; and New York, in

Russian in cities with a population over 1 million. South Dakota only provides

election materials in English, whether instructions, ballots, or voter rights.

Finally, sample ballots and votes on constitutional amendments must be issued

in English and Spanish in New Mexico, where speakers of unwritten languages

are also assisted. Colorado represents a special case in that it does not regulate

the materials it translates, but rather makes explicit those it is not required to

translate because they are not under the VRA: ballot issue initiatives and their

corresponding informational documentation at a state and local level.

The remaining states provide materials in languages other than English if the

established thresholds are exceeded; these thresholds differ from those of the

VRA both in the elements considered to set them and in the percentages.





42

Table 8. Thresholds for providing election materials.

State Threshold

Alabama 5% or more of the voting age population being part of the same

language group (Alabama Code, §17-6-46).

Louisiana 5% or more of the voting age population being part of the same language group in the parish31 (Louisiana Statutes, §18:1306).

California 3% or more of the voting age population in the county is LEP

population and speaks the same native language (California Elections Code, §14201, 1971)

Washington D.C. 5% of the eligible voting population in the election ward has the same native language (D.C. Code, §1-1031.02, de 1976).

New Jersey 10% or more of registered voters in a given district speak Spanish as their native language (New Jersey Statutes, various sections).

Texas Hispanic-origin or descent population representing 5% or more of total population of the county to which the district belongs (Texas

Election Code, §272.002, among others).

Provisions in Alabama and Louisiana affect concrete documents: voting

instructions in the former and absentee voting materials in the latter. The rest

of the states include more documents. California and Texas, in addition to being

required by the VRA to provide all materials in Spanish, introduce their own

standards for some election materials: in the case of California, facsimile copies

of the ballot issues and voting instructions; in the case of Texas, the 5% threshold

affects every document, although it is not compulsory to provide them when a

ballot translation is posted in the voting location and voters are informed of its

availability. Washington D.C. envisages the possibility of providing materials in

languages that do not meet the established threshold.

31 The parish is equivalent to the county.





43

Finally, together with the legislation on election materials, 12 states require

voting devices to meet VRA language access requirements; in California, this

same condition is governed by section 14201 of the California Elections Code.

2.5. Oral Assistance

A total of 24 states have laws on aspects related to the provision of oral assistance

to limited English proficiency voters, generally focusing on people who are

allowed to provide assistance. In some cases, the voter choses who will help them

(Alabama, Georgia, Massachusetts, Missouri, Maryland, Utah, Wisconsin, and

North Dakota), although provisions do not affect the same type of election or

procedure in all cases. In another group of states (Illinois, Minnesota, Indiana,

and Virginia), assistance is provided by two electoral judges or two election

officials from different political parties. In Iowa and Colorado, the voter may

choose between a person of his/her choice or an electoral judge; in New York

assistance is provided by a voter, and in South Dakota language assistance can

be provided by any person proficient both in English and in the Sioux dialect of

the voter. In New Mexico the voter may be assisted by someone of his or her own

choice or by a member of the precinct board; in cases where the latter cannot

provide assistance, the role of election translator is created. Finally, LEP voters

are assisted by interpreters in Texas (vid. Section 3.6). Other states such as

Connecticut, California, Kentucky, Louisiana, and Rhode Island mention the





44

right to be assisted or the necessary documents to receive assistance, but they

do not make further specifications.

2.6. Election Employees

State legislations also establish language requirements for individuals working

on election day. A total of 18 states include the condition of reading and writing

in English to be an electoral judge, clerk, inspector, coordinator, official, or

member of election councils. New York’s Election Law goes so far as to consider

any person who cannot read and write English and acts as an election inspector

or election clerk guilty of a misdemeanor. On the contrary, it is only possible in

six states that there could be election officials present who are proficient in non-

English languages. For this to happen, California requires that LEP voting age

population represent at least 3% of the district; in Colorado, the threshold is 3%

of the eligible voters with limited English proficiency. The provisions in Texas

and New Jersey are explicitly aimed at the Spanish-speaking population:

Spanish-speaking election officials will be present in Texas districts where at

least 5% of residents are of Hispanic origin or descent, and in New Jersey districts

where 10% or more of registered voters are Spanish speakers. Finally, Ohio

considers the option of hiring interpreters in districts where the number of non-

English speaking voters makes it necessary, with no further specifications. As





45

indicated in section 3.5, New Mexico also refers to the use of translators or oral

assistance at the polling places in compliance with the VRA.

2.7. District Drawing

Electoral systems, considered “the most specifically manipulable instrument” of

any political system (Sartori cf. Lago and Montero 2005: 281), are made up of

elements that legislators try to influence in order to maximize their electoral

payoff. In the United States, the most manipulable element of all is the electoral

district, which can be reshaped through the technique known as

gerrymandering to favor one or another political party or racial group. In order

to avoid these practices, the constitutions of Florida and New York prohibit

redistricting used to nullify or reduce the power of racial minorities, as well as

of “language” minorities. Iowa, Oregon, and Wisconsin include similar sections

in their statutes.

3. Commerce and Consumption

Language not only conditions the success of communication between the

administration and citizens, but it can also become a barrier in private economic

transactions. Due to their limited English proficiency, LEP consumers receive

less information than others to assess and compare their options and make

decisions, which often results in fraud, as shown in data from the Federal Trade





46

Commission (Anderson 2013): the percentage of Hispanic victims of fraud

reached 13.4% in 2011, almost 1.5 times higher than non-Hispanics; that rate

marked a decrease of more than four points since 2007, the year of the previous

report, when the rate was 18%; that figure, in turn, represented a major increase

form the 2003 rate of 14.3%. The greatest problems arise among Hispanics who

believe that they can conduct business in English, rather than among those who

are aware of their own limitations understanding the language.

On the federal level, according to the Electronic Funds Transfer Act (15 U.S.

Code, §1603o-1, 1978) and its subsequent regulatory development, the consumer

must receive all information concerning the electronic transfer of funds in both

English and the language previously used by the agents to market or sell their

services, or to communicate with the customer. Furthermore, the regulations

developed in the Equal Credit Opportunity Act (1974) allow consumers to

receive information in other languages, when that information is also provided

in English and there is no discrepancy in content (Sachs, Kaplan, and Anderson

2015). According to some authors (Bender 1996; Raleigh 2008), as LEP consumer

protection on the federal level is insufficient, assistance is largely determined by

the individual state. State legislation has a core relevance, considering that the

courts have not been particularly favorable to the rights of LEP consumers,

particularly Spanish-speaking consumers (Raleigh 2008; Bender 1996).





47

An analysis of the states’ legislation on languages and commerce activities is

presented below: first, laws regarding misleading commercial practices; then,

laws on contracts and, finally, legal provisions regulating commercial labeling

and records.

3.1. Misleading Commercial Practices

Legislation aimed at preventing commercial fraud shows, on one hand, how

unfamiliarity with a language can be employed to take advantage of the person

unable to understand that language and, on the other hand, the difficulty of

managing multilingual and multicultural societies. Up to 30 states’ legislation

define misleading commercial or marketing practices as situations where one

person takes advantage of another’s person inability to protect his or her own

interests in a commercial transaction because of a physical or mental

impairment, illiteracy, or inability to understand the language or wording of an

agreement. Depending on the state, the provision may be general or restricted

to a particular type of commercial transaction, such as healthcare insurance, real

estate or door-to-door sales. Furthermore, Delaware and North Carolina

consider it an unlawful practice not to provide the buyer at door-to-door sale

with a copy of the contract or a receipt and the cancellation notice in the same

language used in the sales presentation (T. 6. Subt. II. Ch. 44. §4404, and §14-

401.13, respectively).





48

No state prohibits advertisements in languages other than English; in the seven

states with legislation, if advertisements are in a given language, certain

information is required to appear in that language. On the contrary, there is

extensive legislation on the terminology that may or may not be used in business

names, either in English or in other languages (such as “bank,” “trust,”

“corporation,” “accountant,” “auditor,” etc.).

One special case relates to the figure of the notary public, whose direct

translation by “notario público” can lead to misunderstanding. In the U.S., a

notary public is an official “appointed by state government to witness the signing

of important documents and administer oaths.”32 On the contrary, in Latin

America and Spain a “notario público” is a high-level civil servant—typically a

judge or attorney—who can offer legal counsel and prepare official documents.

Since U.S. notaries public are not authorized to perform those tasks, many states

prohibit the use of misleading terms; in order to prevent fraud or confusion

about the services offered, they also require notaries, when advertising their

services in languages other than English, to provide their clients with a notice

explaining that they are not authorized for legal practice.33 California, Illinois,

32 Definition provided by the National Notary Association’s informational brochure, at http://bit.ly/2qhcw4e 33 California, Georgia, Michigan, Minnesota, South Carolina, and Utah also include legislation on immigration consultants.





49

Kansas, and Oklahoma explicitly prohibit the translation of “notary public” as

“notario público” in Spanish. So far, 34 states have legislation regarding this

issue.

3.2. Contracts

Protection for LEP consumers varies widely from state to state. First, three states

have no legal provisions regarding languages and commercial contracts:

Kentucky, Virginia, and West Virginia. In three other cases (Alabama, Alaska,

and Mississippi), the information disclosed to the consumer has to be in English.

The remaining 46 states differ in the contracts covered by their legislation, and

in the criteria used to determine which consumers will receive information in

their native languages. In general terms, the information that is translated is the

contract, its basic characteristics, or the notice of cancellation.

Several states regulate only one type of contract: Indiana, North Dakota, and

Tennessee (debt-management services); Montana (telemarketing); Oklahoma

(credits); and Wyoming (door-to-door sales). On the contrary, California

includes the highest variety of cases (mortgages, loans, credits, telemarketing,

door-to-door sales, cars, etc.). It must be noted that states’ statutes are not

identical: although there is a remarkable degree of similarity, differences can be

found both in the subjects and in the level of detail of the provisions.





50

Criteria for deciding whether to provide LEP consumers with information in

languages other than English vary from state to state and within states. Bender

(1996: 1063-1064) has identified six different approaches to minority-language

consumers’ rights:

a) Protection of consumers whom the vendor knows or can intuit do not

understand English (the Language of the Consumer Standard).

b) Protection of consumers with whom the vendor bargains in a non-English

language (the Language of the Bargain Standard).

c) Protection of speakers of any minority language that the vendor has

targeted through advertisements in non-English languages (the Language

of the Solicitation Standard).

d) Protection of speakers of any minority language that represent more than

a certain percentage of the population or of the vendor’s clientele (the

Variable Language Threshold Standard).

e) Protection of speakers of a single minority language, typically Spanish

speakers (the Fixed Language Standard).

f) A combination of all the approaches listed above.

Table 9 summarizes the approaches used by each state taking into consideration

all the sections and contract types that require provision of information in non-

English languages.





51

Table 9. Criteria used to provide information to LEP consumers in non-English languages.

State Consumer Bargaining Solicitation Threshold Fixed Language

Arizona √ √ √ (Spanish) Arkansas √

California √ √ √ √ (Spanish, Chinese, Tagalog, Vietnamese,

Korean) √ (Spanish)

Colorado √ √ √ (Spanish) Connecticut √ √ (Spanish) D. C. √ √ (Spanish) Delaware √ √ (Spanish) Florida √ √ Georgia √ Hawaii √ √ Idaho √ (Spanish) Illinois √34 √ (Spanish) Indiana √ Iowa √ √ Kansas √ (Spanish) Maine √ Maryland √ √ √ Massachusetts √ √ (Spanish) Michigan √ √ Minnesota √ √ Missouri √ √ Montana √ Nebraska √ √ Nevada √ √35 √ (Spanish) New Hampshire

√ √

North Carolina √

North Dakota √ New Jersey √ √ √ (Spanish)

New York √

X (Six most spoken languages; languages of more than 20% of

the inhabitants in the area)

√ (Spanish)

New Mexico √ √

√ (Spanish; Spanish and

other languages)

34 When the law refers to the language in which the presentation is made, it is included in “Negotiation,” because it is considered that there is an oral interaction between the seller and the potential buyer. 35 It only considers the option of providing information in Spanish if the advertisement is in Spanish.





52

State Consumer Bargaining Solicitation Threshold Fixed Language

Ohio √ Oklahoma √ Oregon √ √ Pennsylvania √

Rhode Island √ √ (Spanish; Spanish and Portuguese)

Tennessee √

Texas

√ √

√ (Spanish; Spanish and

other languages)

Utah √ Vermont √ Washington √ √ √ (Spanish) Wisconsin √ √ √ (Spanish) Wyoming √

As can be noted, most states mix several approaches. Of the 15 that only use one

criterion, eight only have one section regarding contracts in their legislation.

Furthermore, when a specific language is designated to provide information to

the consumer, that language is usually Spanish.

Section 1632 of the California Civil Code, the centerpiece for most of California’s

legislation on languages and commercial transactions, is the only text with a

general scope. The original section, from 1974, established the consumer’s right

to receive the contract translated in Spanish if it had been negotiated in that

language, with the sole exception that the customer had himself provided an

interpreter, not necessarily a professional, for the negotiation. Without a copy

of the contract in Spanish, the consumer had the right to rescind it. After coming

into force in 1976 and after subsequent changes, in 2003 Chinese, Tagalog,





53

Vietnamese and Korean were added to Spanish as protected languages, thus

covering the five most commonly spoken non-English languages in California in

2000 and 2014. In the 2014 amendment, foreclosure consultations and reverse

mortgages contracts are included among those that need to be translated.

Up to 12 states have legislation regarding insurance contracts that allows

advertisements, policies, and other materials in languages other than English;

although those policies are only informative, in the event of a conflict, the

English version will prevail. Another group of 13 states does not explicitly

mention the possibility of providing policies in other languages, but it indicates

that these policies meet plain-language requirements if they are certified to be

translations of the same policy in English; thus, it follows that policies in non-

English languages are allowed. California (car insurance), and Minnesota and

Texas (health insurance) prohibit in their legislation discrimination of potential

customers on the basis of language. As for healthcare insurance carriers, in many

cases they are required to elaborate access plans for LEP population; this will be

addressed in the section regarding healthcare and social services.

Four states have provisions regarding interpreters’ presence during contract

negotiations. In Utah, these provisions apply only to insurance providers: the

interpreter can be one of the employees or one provided by the client. In Illinois,





54

it applies to insurance sales, financial transactions at banks or saving banks, etc.

Finally, if a lease is managed through an interpreter provided by the lessee,

Oregon’s law exempts from translating information about that contract, which

would otherwise be mandatory; the same criterion is applied in California to

financial institutions, with explicit mention of Spanish, Chinese, Tagalog,

Vietnamese, and Korean.

Finally, in addition to the conditions imposed on private companies, California,

Illinois, Texas, and Utah provide for educational and informational programs on

investment and savings products in various languages, as well as information

about insurances in languages other than English.

3.3. Records and Labeling

When banks, insurance providers and other businesses (thrift stores and

moneylenders, among others) are required to maintain financial activity records

or account books, these must be in English. This situation evidences an

important change of perspective regarding the use of non-English languages:

nearly a century ago, Yu Cong Eng v. Trinidad (1926) invalidated a law passed by

the U.S. Colonial government in the Philippines that prohibited Chinese

merchants from keeping records in their own language, as this was deemed a

denial of their right to due process and equal protection as guaranteed by the

Constitution (Dale and Gurevitz 1997: 7).





55

As far as product labeling is concerned, of the 192 sections collected, only 10

require information in the label to be in a language other than English. In four

states that language is Spanish: pesticides (New Mexico and New York, which

also includes other languages), child hazard warnings on certain packaging and

on gas cans (California), and hazardous substances (Texas). Provisions in the

remaining five states (Arizona, Indiana, Louisiana, Michigan, and West Virginia)

refer to information in languages other than English, again just for specific

products. At the federal level, the Food and Drug Administration (FDA)

guidelines only recommend labeling in non-English languages. Therefore, there

is no general policy on labeling in other languages. Even in Hawaii, an officially

bilingual state, all information required by law must appear in English.

4. Labor

The debate on language access to civil and political rights includes, in addition

to communication with the government, public services and political

participation, workers’ rights (Schmidt 2000: 19). There are two main issues

under discussion: first, whether a candidate’s rejection for a job because of his

or her level of English proficiency constitutes discrimination. In this regard, this

section analyzes legislation on language requirements to access certain

positions, both in the public and private sectors. The second controversial issue,





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addressed in the second part of this section, relates to the languages that can be

spoken in the workplace and to those known as English-Only policies.

4.1. Requirements for Employment

States impose language requirements for access to several positions, which can

be grouped into two categories: the first, regulated professions requiring a

license to practice; the second, positions in public administration. As for the first

group, all candidates for a professional license who are non-native English

speakers, or who were trained in non-English languages, must demonstrate

English proficiency. While there are differences between states, regulated

professions generally require a high degree of specialization (such as veterinary,

architect, engineer, or healthcare), although there are also licenses and

permissions for insurance brokers, real estate brokers, and professions related to

cosmetics or to mining. Exceptions to English language requirements apply to

nursing assistance (Illinois), nursing assistance, home and kitchen assistants

(Nebraska), and acupuncture (Virginia): in these cases, applicants must be

proficient in English or another language spoken by a substantial number of

patients. Maryland includes a section stating that English proficiency should not

be a requirement to grant a professional license, except in those cases in which

it is essential to practice the profession (Business Regulation, Title 2, §2-110);





57

despite this provision, Maryland’s English requirements are as extensive as the

other states’ ones.

Professional licensing examinations are generally conducted in English.36 When

other languages are allowed, legislation generally refers to Spanish: that is the

case for California, Florida, New Jersey, New Mexico, and Texas for insurance

brokers, and for other professions in California, Illinois, New Jersey, New York,

New Mexico, and Oregon. In other states, legislation mentions the possibility of

offering exams in other languages for specific professions (Delaware, Illinois,

Minnesota, New York, Oregon, Washington, and West Virginia), or an oral exam

if the language is a problem for a written test (food handler in Utah). Exams

allowed both in Spanish and in other languages give access mainly to licenses for

professions related with cosmetology.

Florida and Maryland are the states closest to having a general policy on the

matter. In Florida, for professional licenses in healthcare or business positions,

along with surveyors and funeral services providers, exams may be conducted in

the applicants’ native language if 15 or more request it. Except for Spanish, the

request must be submitted six months in advance, and the competent council

36 Eight states have legislation that provides for the possibility of taking the driving test in languages other than English.





58

will determine whether it is in the public interest to translate the test, taking

into consideration the percent of speakers of the required language. The

applicants must bear the translation costs. Maryland allows the applicant to be

assisted by an interpreter (at his or her own expense), as long as the interpreter’s

performance does not compromise the integrity of the exam.

Regarding the second group of positions, those in public administration, the

general requirement is again to be proficient in English, although not all states

have legislation on this issue and, when they do, it does not regulate the same

positions. In Kentucky, Nebraska, Oregon, and Washington, the requirement

applies to any person looking to access civil service. Indiana and Ohio English

proficiency applies to railroad work; Illinois and Michigan, to mining, and

Kentucky, New York, Pennsylvania, and Wyoming, to firefighter and police

positions (also Missouri for police officers). Kentucky, Montana, Nebraska, New

Jersey, and Washington include English requirements for specific positions.

Finally, one of the requirements to become a notary public in 35 states is to be

proficient in English.

Requirements of proficiency in non-English languages have an anecdotal

presence in the legislation of most states, except in those with language access

laws (California, Washington D.C., Hawaii, Maryland, and Minnesota; see





59

section 1.2), which include the hiring of bilingual staff, although never as newly

created positions, but to fill vacancies within the existing budget. Furthermore,

the D.C. one goes further and includes affirmative action or positive-

discrimination measures when hiring public employees. The goal of the

Affirmative Action in District Government Employment Act (1976) is to ensure

the representation of all of groups of the labor force, including Spanish-speaking

Americans. California also includes affirmative action in its constitution, but it

does not refer to language, and the same is true of the sections against

discrimination in public employment in New York. In addition, California

contemplates announcing job openings in languages other than English to

increase the number of minority employees. Apart from this, there is a

supplement for bilingual public employees in Illinois and Texas (in the latter

case only for firefighters and police officers). Along with these more general

provisions, as with English proficiency requirements, there are sections

regarding very specific positions, such as forest rangers in the border between

Maine and Canada (French), and personnel to participate in vehicle inspections

on the Texas-Mexico border (Spanish).

Finally, within this section on language requirements for employment,

legislation reflects a direct link between English proficiency and access to the

job market. However, Piller (2016) does not connect the difficulties experienced





60

by LEP population to find a job just with language issues, but with other aspects,

such as cultural differences and a lack of other skills. Up to 20 states include

English as a second language classes as part of training programs for unemployed

people, with explicit mention to LEP people among those facing barriers to

finding a job.

4.2. Language in the Workplace

The second area of language legislation and labor relates to the languages that

can be used in the workplace in the private sector. Since there is no federal law

on the matter, when cases of language discrimination reach the courts, they are

usually evaluated under Title VII of the Civil Rights Act (§703.a.1 and 2), which

prohibits discrimination in employment on the basis of race, color, religion, sex,

or national origin, specifically under the latter. The Equal Employment

Opportunities Commission (EEOC), created to enforce Title VII, adopted in 1980

the “Guidelines on Discrimination Because of National Origin,” in which

English-only policies in the workplace are justified only if they respond to the

“needs of the business;” that is, if they are mandatory for the business to achieve

its goals. While some authors argue that these guidelines are not sufficient to

avoid discrimination based on language, since the courts are not obliged to take

them into consideration (Del Valle 2003: 121), others assert that the EEOC

overreached its interpretation of Title VII (Leonard 2004; Prescott 2007).





61

California, Illinois, and Tennessee have introduced the EEOC guideline into

their statutes; the other mention to English-only policies in the workplaces

appears in the statutes of Georgia, in which it is indicated that no municipality

may prohibit private businesses from using languages other than English.

Executive Order No. 13166 requires employment agencies to provide language

assistance to LEP population. Apart from this provision in the public domain,

laws addressing the relationship between private employer and employee are

scarce. The employer has then a wide margin for action: it is easier for each

company to adopt English-only rules than it is to try to pass a state or federal

law requiring speaking only English (Del Valle 2003: 118). In any case, as observed

in other areas, state legislation assumes that English is the majority language in

the workplace and then includes cases in which certain information can be

provided in other languages, either through interpreters or in writing (translated

documents and signs).

In five states, the use of interpreters is permitted for labor issues, both in the

public and the private sector. In California, Maine, and Wisconsin, interpreters

are limited to medical examinations and hearings to determine compensations

for work-related accidents. In Texas and New Jersey, interpretation services are

offered only in Spanish and associated with the Workforce Commission and with





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the Bureau of Migrant Labor respectively. Finally, Iowa and Nebraska require

employers with more than 10% of their employees speaking languages other than

English to hire interpreters; this provision is part of two laws protecting non-

English speaking workers (the Non-English Speaking Employees, from 1990, and

the Non-English Speaking Workers Protection Act, from 2003, respectively).

The use of translations to disclose information to employees has a greater

presence in the states’ legislation, although as many as 19 states lack provisions

in this regard. Alabama, Indiana, and West Virginia only consider information

in English. Table 10 summarizes the criteria that states apply to determine which

languages the public administration or private businesses must use to inform

workers. The classification is based on Bender’s approach (1996) for analyzing

protections for LEP consumers (see section 4.2); this table considers the

language of the worker, the language in which the employer and employee

communicate, and the use of thresholds or fixed languages.





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Table 10. Criteria for determining the languages other than English to provide information to workers.

State Language

of the Worker

Employee Communication Threshold Fixed Languages

Arizona √ (Spanish; other languages)

California √ √

√ (the seven languages most spoken by

participants in the unemployment program)

√ (Spanish, Chinese, Korean,

Vietnamese, Tagalog; other

languages)

Connecticut √ √ √ (Spanish, French; other languages)

Delaware √ (Spanish)

D.C. √ √ (languages spoken by 3% or 500 of the population) √ (Spanish)

Florida

√ (the language spoken by the majority of non-

English-speaking employees; the language of

5% of family units in a given country)

√ (Spanish)

Illinois √ √ (Spanish and Polish)

Iowa √ (the language spoken by 10% of the employees)

Kansas √ (Spanish) Maine √

Maryland √ (Spanish and other language)

Massachusetts √

√ (primary language of 10.000 residents in the state

or of half of 1% of the residents)

√ (Spanish, Chinese, Haitian Creole, Italian,

Portuguese, Vietnamese,

Laotian, Khmer, Russian)

Michigan √ (language of a substantial number of employees)

Minnesota √ √ (Spanish)

Nebraska √ (the language spoken by 10% of the employees) √ (Spanish)

Nevada √ √ (various languages)

New Jersey √ √ (language of a substantial number of workers in the

state) √ (Spanish)

New York √ √ (Spanish,

Chinese, Korean; other languages)

New Mexico √ (Spanish; other language; Navajo)





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State Language

of the Worker

Employee Communication Threshold Fixed Languages

Ohio √ (Spanish) Oklahoma √

Oregon √ √ √ (the language of the majority of the employees)

√ (Spanish; other language)

Pennsylvania √ √ (other languages) Rhode Island √ √ (other languages)

Texas √ √ (the two most spoken languages in the state)

√ (Spanish; other languages)

Vermont √ Virginia √ (Spanish)

Washington √ √ (the workplace’s five most-used languages)

Wisconsin √

Once again, there is no common pattern for the languages into which

information must be translated, either between states or within them. The same

is observed regarding what information is translated: although the most

common subjects are related to the characteristics of the contract, working

conditions, minimum wage, work-related accidents, and sick leave, each state

has different provisions. Whenever there are fixed languages, Spanish appears,

but unlike noted with English proficiency requirements, usually linked to highly

qualified professions, in this case Spanish is associated with low-skilled jobs,

migrant labor, and in general agricultural work.





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5. The Justice System

People with limited English proficiency also face significant barriers to access

the justice system. In these cases, the enforcement of due process guarantees37

(the right to a fair and speedy trial by an impartial jury, to be informed of the

charges, to be represented by an attorney, and to confront witnesses testifying

against defendants) entails unique challenges (Kibbee 2016: 53). The federal

justice system is governed by the Court Interpreters Act of 1978 (28 U.S.C. §1827),

which requires federal courts to provide interpreters in criminal cases and in

civil cases brought by the government. Furthermore, the EO 13166 of 2000

extends this requirement to state courts. Nowadays, the protection of non-

English-speaking people at the state level has overcome that at the federal level,

under which people who do not speak or understand English well enough to

participate in proceedings can see how they are denied an interpreter (Abel

2013).

However, the challenges for LEP people are not limited to what happens in the

courtroom, but “from the moment the police begin to question a suspect

through their arrest and trial to post-sentencing procedures, non-English

speakers are at a frightening disadvantage when entangled within the US’s

criminal justice machinery” (Del Valle 2003: 160). The following analysis of the

37 Fifth and Fourteenth Constitutional Amendments; the latest extends due process from federal courts to state courts.





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states’ legislations is divided into three sections: the first one includes all pre-

trial proceedings; the second, those affecting the trial itself; and the third,

subsequent proceedings.

5.1. Before Court Proceedings

Language issues are present in judicial procedures from the moment a law

enforcement agent decides who he or she interrogates, who he or she suspects

may have committed a crime or infraction. When that decision is guided by race

or national origin, it is considered to constitute profiling,38 a discriminatory

practice. Colorado, New Mexico, and Oregon have passed legislation including

language among those discriminatory elements.

Later on, when a person becomes part of a legal proceeding, law enforcement

agents are required to read them their rights. In the case of a suspect, these are

known as the Miranda Warning; if they are not read, subsequent legal

proceedings may be deemed inadmissible. Kibbee (2016) and Del Valle (2013)

have noted that education level and social factors can influence whether these

warnings are understood, and language is also an essential element. The case

originating this warning (Miranda vs. Arizona, 1966) did not establish a

38 See https://bit.ly/2kPn8nZ





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particular text, so even in English there are variations.39 In 2017, the American

Bar Association urged federal, state, and local authorities to provide a

standardized Miranda Warning translation to accurately inform individuals of

their rights.40

In general, states do not explicitly refer to the Miranda Warning, but there is

legislation regarding the languages in which the rights of suspects and victims

must be communicated. Five states refer to the rights of detainees: D.C. (rights

of individuals arrested in demonstrations, in Spanish and other languages);

Texas (rights in the detainee’s native language and with interpreters); in

California, they will inform detainees of their right to an attorney through signs

in English and any language spoken by 5% or more of the population, while in

Illinois those signs are in English.

13 states have legislation regarding the languages in which victims of crimes and

other individuals involved in a process should be informed of their rights. In

Florida, New Jersey, New York, and Texas, victims of domestic violence must be

informed of their rights in Spanish, and in Massachusetts and New York, in their

native language. Individuals who have their rights explained in Spanish include:

39 Although there is not an official text, the Miranda Warning includes the following statements: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.” See https://bit.ly/2IaWXQC 40 Resolution available here: https://bit.ly/2SwE67J





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victims of traffic accidents in New Jersey, parents of abandoned children in New

York, and those whose vehicles have been confiscated in Oregon. In the

remaining cases, information must be disclosed in the person’s native language

or in “other languages:” Alabama, Arkansas, California, and Texas (children

taken into custody); Massachusetts (victims of harassment, victims or witnesses

to crimes and their families); New York and Ohio (people whose incapacity is

being determined); Tennessee (people from whom the state seeks to recover

benefits incorrectly paid); Texas (guardians of adults); Utah (parents of children

taken into custody); and Washington (parents of children taken into custody,

and victims or witnesses of a crime).

In addition to these rights, there are other warnings, notifications and

information that must be provided to the persons involved in judicial

proceedings. As usual, California is the state with the largest volume of

legislation. When publication of notices in newspapers is required, they must

generally be in English, with the exceptions of Louisiana (court notices in

general, French), New Mexico (proceedings against non-residents or unknown

parties, foreclosure notices or property sales, etc., Spanish), New York

(subpoenas, other languages), and Rhode Island (probate court’s notices, other

languages).





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Up to 27 states have legislation regarding the languages in which information is

provided to victims of human trafficking, generally in Spanish and in the

languages that the state is obliged to consider under the VRA for election

materials. Furthermore, seven states have introduced in recent years legislation

on eviction notifications: they must be in English, Spanish and in other

languages in Delaware, Illinois, and Texas; in the owner’s language in New

Hampshire; in the language generally used in communications with the tenant

or owner in Massachusetts, and, in D.C., in the languages determined by Section

2-1933 (3% or 500 people).

As noted in most analyzed areas, states do not translate the same information or

the same languages; nor is there a fixed criterion within a given state. It is

observed, though, that most of the translated information has to do with

proceedings in which minors are involved: 24 states require to inform parents or

guardians about the proceedings in a language they understand, and the same is

true of the document by which a parent consents to the assignment of a guardian

to his/her child. The other area that concentrates the largest volume of

legislation is that of domestic and sexual violence; in nine states, potential

victims must be provided with information on legal and assistance resources

available in languages they understand or in their native languages.





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As for the languages considered, different formulas can be found: from “a

language they can understand,”41 “primary language,” or “other languages,” to

the use of thresholds (D.C.) or fixed languages, only Spanish with two

exceptions: in California, the consent to be interviewed by the U.S. Immigration

and Customs Enforcement and the notification of the initiation of a procedure

related to firearm or drug activity (Spanish, Chinese, Tagalog, Vietnamese, and

Korean); and in Rhode Island, information in cases of domestic violence

(Portuguese, Spanish, Khmer, Hmong, Lao, Vietnamese, and French).

5.2. Court Proceedings

Every state has legislation—either general or related to a specific type of court

proceeding, such as domestic relations or juvenile matters—according to which

any document presented in a court proceeding must be in English, or

accompanied by an English translation.42 Up to 11 states (Arkansas, California,

Colorado, Iowa, Michigan, Missouri, Montana, Nevada, Utah, Vermont, and

Wisconsin) go a step further by stating that all court proceedings will be in

English. Once again, from this general rule legislation establishes exceptions in

which language assistance will be provided.

41 Sometimes (always in proceedings related to minors) the possibility is offered to use an interpreter to explain the information to LEP people. 42 Most of these provisions are part of uniform interstate laws, which seek to create uniformity among various states’ legislations. The National Conference of Commissioners on Uniform State Laws, created in 1892, proposes laws that states then decide whether or not to adopt.





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As mentioned above, the Court Interpreters Act guarantees the presence of

interpreters in criminal cases and in civil cases brought by the Government in

the federal justice system (Abel 2013), and the Department of Justice interprets

EO 13166 as extending the requirement to provide interpreters to state courts

receiving federal funding.43 Every state offers court interpreter services, although

they do not all have the same legal design or scope. Only the constitutions of

California (Art. I. §14) and New Mexico (Art. II. §14) recognize the right to an

interpreter for defendants. Arizona, Colorado, Connecticut, New Jersey, North

Carolina, and Tennessee do not have provisions concerning court interpreters

for LEP population in their statutes; instead, regulation is established generally

by administrative rules.

There are notable differences in the rest of the states. On one hand, some states

have separate provisions for different situations (California, New York), while

others have passed more comprehensive laws that include various types of

courts (for instance, D.C. and Kansas). On the other hand, some legal texts

provide interpreters for all persons involved in the proceedings (defendants,

victims, plaintiff, witnesses); in others, the extent of assistance is limited (for

example, the laws of Florida and Utah only refer to witnesses, and Michigan’s, to

43 “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.” Department of Justice 2002. Federal Register Vol. 67, n.° 117. Tuesday, June 17, 2002.





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defendants). Furthermore, while some states have the same legislation both for

hearing-impaired and for non-English-speakers (D.C., Florida, Idaho, Indiana,

Kentucky, Maryland, Minnesota, Nebraska, Ohio, West Virginia, and Wisconsin,

as well as Arkansas for civil cases), there are separate provisions in other cases.

The greater presence of interpreting laws for people with disabilities may be

related with the earlier development of this type of interpreting; as Cabrera

(2017: 56) points out, while sign language interpreter certification has “reached

maturity,” certification for spoken languages remains “in the earlier stages.”

The statements of purpose of laws on court interpreting emphasize again the

core notion of language access: non-English-speaking population cannot take

part in legal proceedings enjoying the same guarantees and rights than an

English-speaking person, so interpreting services must be provided to correct

such inequality.44 As noted in the sections above, this assistance is not conceived

as a recognition of the presence of languages other than English in the U.S., but

as an aid to people who face language barriers and who, because of having a

language other than English, sometimes are considered to have deficiencies or

disabilities in communication.45

44 See Arkansas (Code §16-10-1101); California (Government Code, §68560); Nebraska (Code §25-2401); Oregon (Statutes §45.273); Pennsylvania (Statutes §4401); Rhode Island (General Laws §8-19-1); and Washington (Revised Code §2.43.010). 45 See the definition of “communication-impaired person” in the D.C. Code §2-1901, and that of “persons disabled in communication” in the Minnesota Statutes §546.42.





73

Unlike other areas managed under perspective of language access, in which

assistance applies to specific languages, the right to due process is considered

somehow a right of all U.S. residents, despite the fact the legal design and

implementation of the rules reveal significant issues that can lead to inequalities

(Abel 2013). Interpreter certification programs can also introduce differences

between languages. For example, the Federal Court Interpreter Certification

Examination program only certifies Spanish-English interpreters, in response to

the main need of the judicial system,46 while the National Center for State Courts

(NCSC) certifies nine languages, including Spanish (Cabrera 2017). California

was the only state requiring interpreters to be certified before the Courts

Interpreters Act was passed in 1978 (Abel 2013: 594), and it is the only state

establishing in the statutes the languages in which interpreters will be certified,

although it only applies for administrative hearings: Spanish, Tagalog, Arabic,

Cantonese, Japanese, Portuguese, and Vietnamese. Along with California, the

statutes of Arkansas, D.C. Florida, Illinois, Kentucky, Massachusetts, Mississippi,

Nebraska, Nevada, New Mexico, Oklahoma, Oregon, Pennsylvania, Rhode

Island, Washington, West Virginia, and Wisconsin also create or consider the

establishment of interpreter certification programs.

46 See https://paradigmtesting.com/fcice-ov/





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All this legislation on language access in the judicial system does not apply to

juries. Different from defendants, plaintiffs, victims, or witnesses, interpretation

services are not provided to juries, leading to a situation similar to that observed

regarding political participation: assistance is provided for LEP people, but their

active participation in the judicial proceedings as juries is not encouraged (or,

sometimes, even prohibited). At the federal level, the Jury Selection and Service

Act (U.S.C. §1865) established that anyone who is not able to speak, write, read,

or understand English with enough proficiency cannot be considered to serve in

a jury. Except for eight states (Florida, Minnesota, Mississippi, Montana,

Oregon, Rhode Island, Tennessee, and Virginia), the rest have the same

requirement in their laws, apart from New Mexico, which prohibits restricting

the right of any citizen to serve in a jury because of his or her inability to speak,

read, or write English or Spanish (Constitution, Art. VII, §3). Even if LEP

population improve their English proficiency, members of language minorities

are often excluded from juries because it is thought that, because of their

proficiency in other languages, they will consider direct testimonies from

victims, defendants, and witnesses in languages other than English instead of

the official record in English (Kibbee 2016: 68).

Finally, English proficiency can also play a key role in certain court decisions. Six

states (Alaska, Idaho, Kentucky, North Carolina, Vermont, and Wyoming) take





75

into account the English proficiency of a person who waives his or her right to

an attorney in order to determine whether they were aware of the consequences

of their decision. New Jersey has the same provision for minors. In California,

Nebraska, and Washington (in the last two cases, limited to children of Native

American tribes), the parents’ consent to the appointment of a guardian for their

children will not be valid if a judge cannot certify that they understood the terms

and consequences of that authorization. In other cases, English proficiency is

taken into account to determine the validity of a prenuptial agreement

(California), a consent of adoption (Michigan), and a medical consent (Ohio).

5.3. After Court Proceedings

Once the courts make a decision, it has to be communicated and enforced. States

lack a clear policy on this issue; what is observed are very specific provisions that

vary from case to case, with the exception of California, where the Judicial

Council must provide translations of all forms necessary for the enforcement of

civil judgements in languages other than English (Code of Civil Procedure,

§681.030). Much of the information that is translated relates to minors: child

support (Arizona, Spanish); recommendations to guardians and foster parents

and information about the terms of a minor’s parole (California, in their own

language); the plan to assist a child (Florida, Idaho, Oklahoma, and Texas, in

their own language); and minors under state custody (Minnesota and Nebraska,





76

in their own language). Other information is intended for victims of crime: the

assistance application is translated to Spanish, Chinese, Vietnamese, Korean,

East Armenian, Tagalog, Russian, Arabic, Farsi, Hmong, Khmer, Punjabi, and

Lao in California, and other information materials are translated to Spanish in

D.C.

Notice of penalties for violation of custody or visitation of a child in New Jersey,

and information on the payment of judgements in Wisconsin are also provided

in Spanish. Finally, Minnesota and Texas neighbors are notified in a non-English

language in the first case, and in Spanish in the second, about the presence of a

sex offender in the area; in Pennsylvania the sexual aggressor is notified in a

language that he understands about the obligation to register as a sexual

aggressor.

Language issues are also taken into account when designing programs for

perpetrators of domestic violence in Washington, and the courses for inmates

who drove under the influence of alcohol; family stabilization courses for

parents with children under custody must be available in Spanish in Texas. In

addition, Minnesota, Missouri, South Carolina, and Washington include English

as a second language (ESL) classes as part of the support provided to victims of

human trafficking and of other crimes in Washington.





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Imprisonment is also linked to language matters. Seven states (Arizona,

Colorado, Hawaii, Louisiana, Michigan, Nevada, and Pennsylvania) provide ESL

courses for inmates or as a requirement for parole. Among the information

communicated to inmates in languages other than English are the prison rules

in New Jersey and New York, in Spanish, and the special procedures and body

searches for pregnant inmates in Colorado and New York. Finally, New York and

D.C. require the inclusion in their annual reports on programs for victims of the

language of people served, so that translation and interpretation services can be

evaluated. Provisions requiring the collection of data on mother tongues or

preferred languages can be found as well in legislation regarding professional

licenses and on health programs and social services.

6. Healthcare and Social Services

Speaking a mother tongue other than English results in inequalities in access to

healthcare and in the incidence of certain diseases (Kibbee 2016: 149-150). In this

regard, Martínez (2015) points out the existence of a “linguistic gradient” that

would explain the differences in health outcomes using a linguistic continuum,

in this case specifically for Latinos: monolinguals in English have better

indicators than bilinguals in English and Spanish, who in turn have better

indicators than monolinguals in Spanish. This notion of the language difference

as a barrier is observed in much of the legislation, which refers to the need to





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take measures to reduce these barriers or to implement actions to reach

underserved populations, which often include LEP population.

At the federal level, the legal basis for language assistance in healthcare lies on

the prohibition of discrimination on the basis of national origin in Title VI of the

Civil Rights Act. Furthermore, EO 13166 also applies to agencies receiving federal

funding, including healthcare and social services agencies. After the publication

of EO 13166 in 2000, the U.S. Department of Health and Human Services updated

the guidelines for the provision of language assistance (Fed. Reg. Vol. 68, No.

153: 47311-47315), and the Office of Minority Health established in the same year

the standards to provide LEP patients with cultural and linguistically

appropriate services, defined as “health care services that are respectful of and

responsible to cultural and linguistic needs.” (U.S. Department of Health and

Human Services 2001: 5). Of the 14 standards, four correspond to language access

services and are mandatory for all agencies receiving federal funds: offering

language access services, including bilingual staff or interpreting services for LEP

patients; providing patients with written and oral information about their right

to these services; ensuring their provision through interpreters and bilingual

staff, avoiding family and friends; and making easy-to-understand materials and

signs available in the languages of the most representative groups in the area in

which they provide services (ibid.).





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The analysis of the states’ legislations is offered below, with laws that vary

notably between states in scope and in the languages considered, among other

aspects; furthermore, as was noted in the judicial field, it is shown how in recent

years legislative and regulatory activity at the state level has surpassed that at

the federal level (Chen, Youdelman, and Brooks 2007). First, written assistance

in healthcare and social services is examined, followed by oral assistance and

interpretation.

6.1. Written Language Access

There is no common pattern regarding what information to translate for LEP

patients.47 The content translated and the languages vary on a case-by-case basis

in the 47 states with legislation, with no possibility to identify a systematic

approach to written language assistance for LEP people. With regard to

languages, the translation of materials in Spanish, Chinese, Vietnamese, Korean,

Cantonese, Russian, Tagalog, and Arabic is considered. Spanish is once again the

language with the largest presence (18 states). The only provision with a general

scope corresponds to D.C. and requires the translation of all application forms

and brochures related to health, safety, or welfare services into Chinese, Korean,

and Vietnamese.

47 In some cases, the option of providing LEP patients with this information through oral assistance is also considered, without specifying whether it will be done through interpreters or bilingual employees.





80

Apart from this exception, legislation consists of sections that refer to very

specific diseases: for example, D.C. provides the form waiving the human

papillomavirus vaccine in Spanish and other languages, but there is no

legislation about other vaccines. Maryland and Michigan translate information

on HIV, but not on other conditions. The same occurs in New Jersey, which

provides information in Spanish on diseases such as breast or ovarian cancer,

Parkinson’s or Down syndrome. All these lead to the conclusion that the primary

purpose of these laws is to address specific medical problems rather than set

standards for providing translations of medical information (Chen et al. 2007:

364).

The only issue on which a certain pattern can be observed is abortion. Up to 21

states translate information related to voluntary termination of pregnancy into

other languages, most of them under the so-called Women’s Rights to Know Act,

which requires informing women about the existence of assistance resources if

they decide to continue with the pregnancy, the characteristics of the fetus, and

the potential adverse effects of abortion. The language in which this information

is provided varies from state to state: while some refer a language that the

woman can understand or her primary language, others point to specific

languages (Spanish in seven states, along with Arabic in Michigan and

Vietnamese in Pennsylvania). In Arkansas, Georgia, Minnesota, North Carolina,





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Virginia, and West Virginia, this information is translated into all non-English

languages spoken by 2% or more of the population, a much lower threshold than

those usually considered for language assistance (ibid. 364). On the other hand,

with the exception of Minnesota, all are states with English-Official laws. Again,

language access does not seem to be the main objective of these laws.

Apart from these cases, three other states establish thresholds to determine in

which languages certain medical information is provided. In New York, the ten

or six most spoken languages are considered, while Rhode Island mentions the

three most common languages. In several provisions California’s legislation

refers to the “Medi-Cal threshold languages,” a language that “has been

identified as the primary language, as indicated on the MEDS (Medi-Cal

Eligibility Data System), of 3,000 beneficiaries or five percent of the beneficiary

population, whichever is lower, in an identified geographic area” (California

Code of Regulations, Title 9, Section 1810.410).48 There are also provisions

governed by the Dymally-Alatorre Act, which includes language groups

representing 5% or more of the population; others use the In-Home Supportive

Services threshold languages for home assistance services for elderly people,

blind and disabled people; and others work with thresholds of 5% or 1% of people

in health care facilities. Finally, for healthcare service plans, assistance depends

48 This definition is part of the California Code of Regulations, not the Statutes.





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on the total number of people enrolled and the percentage of patients with a

preferred language. Plans with more than one million enrollees must translate

materials into the two most widely spoken languages after English, and into any

other languages preferred by 0.75% or 15,000 of those enrolled. Plans with

between 300,000 and one million enrollees must translate materials into an

additional language, and into others preferred by 1% or 6,000 of those enrolled.

Finally, for plans with fewer than 300,000 members, materials must be translated

into any language preferred by 5% or 3,000 of those enrolled.

Along with these provisions, most states have provisions that require informing

patients of their rights in a language they understand or in their primary

language; these provisions generally refer to mental health centers, centers for

people with disabilities, or residential care homes. Only Illinois (5% of the

county population), and New York (the six most spoken languages in the state)

work with language thresholds. Arizona, California, and Delaware consider

Spanish in some cases. Once again, there is not a consistent pattern in legislation

on patients’ rights.

Finally, legislation requires that warnings about toxic products and dangerous

substances appear in English. The exceptions are California (pesticides, and

biological waste, in Spanish); Rhode Island (contaminated fish and latex, in





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Spanish); and Texas (pesticides, volatile substances abuse, Spanish). Warnings

about the emission of toxic substances must be made in languages other than

English in Washington if a significant part of the population speaks them.

6.2. Oral Language Access

Once again, besides the common federal standards, notable differences can be

appreciated between states in the legislation regarding healthcare and social

services interpreters. Some of them consider using interpreters only in very

specific situations: Alabama, Iowa, Kentucky, and Mississippi, to evaluate

children with disabilities; Washington, in cases of organ donation; Alaska, in the

hearings for people in isolation or quarantine; Maine, to explain available

services for autistic or disabled people; Montana, to evaluate the patient’s ability

to make decisions; and Arizona, to evaluate the individual’s mental health.

Finally, language assistance through interpreters is linked to only one disease in

Rhode Island, tuberculosis, or Kentucky, with legislation urging to provide

Spanish-speaking interpreters to HIV patients. Except in the latter case, the rest

do not mention specific languages, but they refer to “native language,” “preferred

language,” or they simply refer to the availability of interpreting services.

In another group of states, interpretation services are linked to the type of

healthcare facility. This is the case in Massachusetts, which legislates on

interpretation services in acute care hospitals and acute care psychiatric





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hospitals. Connecticut (acute care hospitals), and New Jersey (general hospitals)

provide written and oral assistance: in the first case no criteria are established

regarding this help, while in the second case, assistance is offered when language

minorities exceed a threshold, 10% of the population in the geographical area

served by the hospital.

Furthermore, up to 19 states have passed legislation requiring insurance carriers

and healthcare services providers49 to design and implement language access

plans for LEP people or, at least, to have a directory with the languages spoken

in the facilities or by each specialist. Minnesota is a special case because of its

legislation model, with numerous sections including requirements for health

care providers and an interpreter certification law but lacking a language

assistance law as such. Only three states have passed provisions regarding

language assistance services with a general scope, in addition to these more

concrete rules.

In California, healthcare facilities consider that a language barrier exists when at

least 5% of the population served, or in the area served, speaks the same non-

49 The U.S. healthcare system works with private providers. In this regard, legislation on healthcare sometimes intermingles with that regulating commercial issues. For instance, in Alabama, the right to be informed of mental health services in a language the individual understands is part of the Mental Health Consumer’s (not patient) Right Act.





85

English language: in these cases, the use of bilingual staff or interpreters is

considered (Health and Safety Code §1259). In the case of Medi-Cal, the

abovementioned Medi-Cal Threshold Languages are used to decide whether to

provide language assistance.

The Illinois Language Assistance Services Act (Statutes §205 87/5 to §87/19) sets

the threshold for language assistance (interpreters and translations) at 5% of the

population served and provides for the possibility of the patient being assisted

by a friend or family member, so long as the patient is informed of the availability

of interpreting services. Furthermore, the Illinois Mental Health Hispanic

Interpreter Act (Statutes §405 71/1) requires mental health centers and facilities

for people with disabilities to provide a qualified interpreter if at least 1% of those

annually admitted are of Hispanic descent.

In Washington, language access law does not refer to healthcare services, but to

public assistance, both in general and for children; it states that bilingual staff

will be hired, and translations and interpreting services provided when more

than half of the applications and recipients of assistance have a language other

than English.

The certification of healthcare interpreters at a federal level is done through The

National board of Certification for Medical Interpreters (for Spanish, Russian,





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Mandarin, Cantonese, Korean, and Vietnamese), as well as through the

Certification Commission for Healthcare Interpreters (for Spanish, Arabic, and

Mandarin)50. Only three states include interpreter certification programs in their

legislation: Minnesota (Interpreter Services Quality Initiative, §144.058), Oregon

(Health Care Interpreters, §413.552 a 413.558), and Utah (§58-80a-101 a 58-80a-

601). Other states developed their programs through legal provisions indicating

the need to certify language assistance providers: that is the case of Washington

(Statutes §74.04.025). Minnesota and Oregon legislation do not mention specific

languages to be certified; Utah certifies Spanish, Russian, Bosnian, Somali,

Mandarin, Cantonese, and Navajo.

Besides working with interpreters, there are other alternatives to facilitate

communication with LEP people. On one hand, the figure of the community

health worker (Massachusetts, New Mexico, Oregon, Rhode Island, and Texas),

a mediator halfway between the healthcare professional and the patient who

uses his or her knowledge of the patient’s language and culture to assist

communication between them.51 In this regard, as mentioned in section 5.1,

Illinois and Nebraska require applicants for a nursing assistant or home help

assistant license to be proficient in English or in a language spoken by a

50 See http://www.ncihc.org/faq 51 See the definition used by the World Health Organization: https://bit.ly/1pjTC7j





87

substantial number of patients. On the other hand, Maryland passed the

Cultural and Linguistic Health Care Professional Competency Program in 2009

(§20-1301 a 20-1304), a voluntary program aimed to offer healthcare professionals

(physicians, dentists, nurses, social workers, pharmacists, etc.) different

methods to improve their communication with patients with other languages

and cultures. These types of measures to manage multilingualism can only be

found in healthcare legislation.

Conclusions

This work offered a comprehensive overview of language legislation in the 50

states and D.C., along with the most relevant laws at the federal level. This

legislation constitutes just one part of the rules regulating the language scenario

in the U.S.: executive orders, judicial decisions and, certainly, regulatory

development of the laws should be included in order to have the complete

analysis of the situation. On the other hand, this work and the conclusions that

are now presented refer exclusively to official legal texts, that is, to top-down

language policies, which does not deny the presence of non-English languages

in other areas and the possibility of a different consideration towards them.

It is possible to distinguish two approaches to the U.S. language diversity,

conflicting in appearance, when analyzing U.S. language legislation. On the one





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hand, there is a set of laws that seeks to reinforce English as the only official

language of the country and to limit the use of non-English languages in the

public sphere. On the other hand, a second group of legal provisions recognizes

how people who are not proficient in English, the majority language and the

language of public administration, face difficulties in communicating with the

government; then, there is a need to adopt measures in order to minimize these

barriers. The first group includes some of the English-Official laws; the second,

language access laws, which contemplate, among other things, the use of

translations and interpreters. While it is true that U.S. English, the main driving

force behind initiatives to declare English as the official language, rejects

language access tools, the two approaches coexist: first, because of the obligation

of the states to meet language assistance standards set by federal law and often

included in the English-Official laws themselves; and second, because the

language access approach does not challenge the main English-Only argument

(English is the language of the U.S.), but rather supports the need to help non-

English speakers who experience difficulties in exercising their civil and social

rights through assistance that varies from state to state. These two positions

could be considered as answers to different questions: “Who are we?” vs. “How

do we communicate with the others, the non-English speakers?”

What can be observed in legislation is a series of more or less extensive

exceptions to the general rule: English is the U.S. language, regardless of the





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existence of a legal text that officially declares it so. Even in states with other

official languages (Alaska and Hawaii), their laws explicitly mention the

prevalence of English. Languages other than English are considered strange,

foreign. This can be clearly noted in the statements of political representatives

associated to U.S. English, the main lobby supporting English as the only official

language: “I welcome the Hispanic […] influence in our culture,” affirms Senator

Hayakawa (cf. Crawford 1992: 98), welcoming other cultures as the host. It can

also be observed in legislation: some of the anti-language discrimination

provisions have been developed from laws prohibiting discrimination on the

basis of national origin, thus linking languages other than English to countries

other than the U.S. This is the case of the EEOC guidelines regarding languages

in the workplace, which is based on Title VII of the Civil Rights Act, the legal

provision that prohibits employment on the basis of nationality. There is no

doubt that people with limited English proficiency often come from other

countries, but the direct association of non-English languages with foreigners is

inaccurate and can have perverse effects. Furthermore, while it is true that

people with difficulties communicating in English require special policies to

assist them, the representation of LEP people in legislation often goes beyond a

person requiring support, and it is associated to disabilities for communication,

underserved groups, difficulties to find a job; there are hardly any provisions in

which speaking a language other than English is considered a positive skill.





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These are all general statements that attempt to condense the information

examined. However, the analysis of any aspect of the U.S. reality requires bearing

in mind how often it is not possible to talk about one “United States,” but about

many different United States. Approximately 12% of the legal sections collected

for this work belong to California; 18% of the cases in which Spanish is referred

to as a specific language to be translated or in which to interpret some

information are part of California legislation. Although it is not possible to take

legislative sections as perfectly comparable units, because they differ in content

and relevance, these two percentages are intended to show the important

differences between states.

All states are subject to federal laws and regulations. The Supremacy Clause and

the use of coercive mechanisms by the federal government, such as the

subordination of funds to federal law enforcement, ensure the compliance with

language access standards across the country, at least on paper. Section 203 of

the Voting Rights Act, EO 13166 and its appliance to labor, healthcare and social

services agencies, the Electronic Funds Transfer Act, and the Equal Credit

Opportunity Act are mandatory for all states, which limits the execution of

proposals restrictive with the use of non-English languages. From these

standards, each state introduces its own legislation. Authors such as Raleigh

(2008) and Bender (1996) highlight how LEP consumer protection rests mainly





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in the states’ legislation, while Abel (2013) and Chen et al. (2007) point out how

the main progresses and innovation in language access in the areas of justice and

healthcare have been made in recent years at the state level; which means that

important differences are arising between states.

These inequalities can be explained for several reasons; this does not imply the

existence of a direct association, nor that they constitute exclusive explanations:

on the contrary, as shown by the contradictions observed in legislation, it is

necessary to turn to case analyses such as those of Tatalovich (1995) in order to

find the factors that are influencing the legislation of each state. The first

element that may be acting on the level of tolerance with the use of non-English

languages is political ideology. 15 out of the 20 most conservative states have

passed English-Official laws, while four out of six states with general language

access laws are among the 20 least conservative ones;52 in addition, 25 states with

English-Official laws score above average on the Cultural Conservatism Index.53

The second reason for differences between states relates to their demography.

Texas, New Jersey, and New Mexico, all of them among the states with the largest

Latino population, offer language access measures clearly oriented to Spanish;

52 See http://ava.prri.org Figures from 2017 are used. No data available for D.C. 53 The Cultural Conservatism Index includes as indicators the opinion on the legalization of abortion and on same-sex marriage.





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Louisiana, to French; and California, D.C., and New York have approaches more

inclined to multilingualism. There is no mention of Spanish in the legislation of

ten states,54 although it can be incorporated when language thresholds are used:

all of them are among the 30 states with the lowest percentage of Hispanic

population; in seven of them, Hispanics do not exceed 5% of total. Therefore,

the demographic characteristics of each case have a certain reflection in its

legislation.

The history of the territories that currently constitute the United States is the

third element that could explain part of the differences between states. The only

two mentions of German appear in Pennsylvania’s legislation; those to French,

mainly in Louisiana; the Spanish-language presence, although more diffuse, is

clearly superior in the states of the southwest, together with New York, New

Jersey, and Connecticut. However, this historic sediment has gradually blurred

to the point that the reality described by Kloss in 1977 (1998), showing how, in

the 19th century and at least until the first 20th century decades, the laws were

printed and notices were published in non-English languages, which could even

be heard in the legislatures, has already disappeared, which directly affects the

status of Spanish language in the country.

54 Alaska, Hawaii, Maine, Mississippi, Missouri, New Hampshire, North Dakota, South Dakota, West Virginia, and Wyoming.





93

The historic reality of the Spanish language in the U.S. has been removed from

the collective imaginary (Lozano 2018), and gradually from legislation too. New

Mexico is a state with an official song and an official salute to the flag in Spanish,

and its legislation prohibits discrimination on the basis of language for holding

public office or serving in a jury; but even in this case, laws have not been

published in Spanish for decades. There are no legal provisions asserting the

Hispanic heritage or the Spanish language in any state. That is the reason why

Louisiana, with a French language services program and the Council for the

Development of French, is so interesting, even though, as with language access,

this position does not challenge English-Only arguments. We lack evidence to

explain this difference between Spanish and French, so we can only point to two

intuitions derived from the work carried out for this analysis: the first, the

identification of Spanish as an immigration language (ibid.) and not as a

language with historical presence in the territory, as opposed to the traditional

recognition of French as a language of culture. The second, the perception of

Spanish as a threat because of its magnitude in the country, as the English-Only

policies shown, while French has a very limited influence, at least quantitatively.

The second element that clearly affects the situation of the Spanish language in

the U.S. official areas and policies is multilingualism, although this dynamic is

not exclusive from the U.S., but has also been identified in the European Union

(Valdivieso 2014) in which the coexistence of multiple languages is also





94

managed. There are many legal provisions establishing the languages in which

assistance will be provide through thresholds, and not through the designation

of a specific language. Two laws with a broad scope, the D.C. Language Access

Act and Section 1632 of California’s Civil Code have evolved in recent decades

from English-Spanish bilingualism to multilingualism, precisely after Executive

Order 13166, which works with thresholds. With these types of approaches,

languages other than the majority one receive equal treatment: qualitative

differences, such as historical presence, are not taken into account, nor

quantitative differences once the established threshold is exceeded. Thus,

Spanish is considered a foreign language with a history and a magnitude that, at

least in the legislation, are gradually blurring.

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Rosana Hernández Rafael del Pino Foundation Research Fellow

Instituto Cervantes at Harvard University





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